CHAPTER I
INTRODUCTION
INTRODUCTION
A. BACKGROUND Sharia Banking is an initiative of the House of Representatives has been signed by the President of Indonesia on July 16, 2008, with the number 21 in 2008, having previously passed in the Parliament Plenary Meeting on June 17, 2008. As known the activities of sharia banking in Indonesia only began in 1992, with the operations of PT Bank Muamalat Indonesia (which was founded in 1991, initiated by the Indonesian Ulema Council and the Government). Regulation of Islamic banking at that time was still very limited, in the Act No.7 of 1992 on Banking has not been firmly set on Islamic banking. By considering the needs of the more obvious settings related to Islamic banking, so in the amendment of the Banking Act, namely Act 10 of 1998 concerning changes in the Act No.7 of 1992 on Banking, has accommodated some of the settings related to Islamic banking activities, among others, the understanding of sharia banks include banks, understanding the principles of sharia, and financing. Having accommodated Islamic Banking in the Banking Act No. 10/1998, which was followed by a series of policy measures by Bank Indonesia as the banking authorities, both in terms of regulation, namely by issuing various regulations pertaining to Islamic banking, as well as from the internal side of Bank Indonesia is to establish a separate directorate to deal with Islamic banking, opening the possibility of bank conventional to conduct business activities by establishing Islamic Sharia Unit (SBU), as well as the provision of supporting infrastructure, such as Bank Indonesia Certificates.
CHAPTER II
DISCUSSION
DISCUSSION
A. BANKS, COMMERCIAL BANKS, AND BANK SHARIA
1. Understanding Bank. Under Law No. 7 of 1992 on Banking, which is the bank is "a business entity which collects funds from the public in the form of deposits, and channel them to the community in order to improve the standard of living much." While based on Law Number 10 Year 1998 on Amendment of Law Number 7 Year 1992 above, is the bank is "a business entity which collects funds from the public in the form of savings and channel them to the public in the form of loans and / or other forms in order to improve the standard of living much. " Understanding the bank based on the second Act was amended, which in the Law Number 10 Year 1998 there is the addition of the words "in the form of loans and / or other forms" of savings is channeled back to the community, so understanding the bank it became clearer and broader understanding than banks based on Law Number 7 Year 1992.
2. Definition of Commercial Banks. To know the meaning of Islamic bank, it is necessary first to know about the notion of commercial banks, since the meaning of sharia banks including commercial banks based in the sense of Act No. 10 of 1998, but was not included in the definition of commercial banks in accordance with Law No. 7 year 1992. Based on Law Number 7 Year 1992, which referred to the commercial banks are "banks to offer services in payment traffic." While based on Law Number 10 Year 1998, which referred to the commercial banks are "banks which carry out business activities in the conventional and / or based on sharia principles in its activities providing payment services in the traffic." In the second sense is there a fundamental difference is that on the basis of Law Number 7 Year 1992, the definition of a commercial bank focused on providing services in payment traffic. But based on Law Number 10 Year 1998, the definition of a commercial bank focused on the way we conduct our business in the conventional and / or based on sharia principles, while the provision of services in payment traffic into additional explanation. Thus, the government has been aligning and give equal opportunity to the banks conducting business based on sharia principles with the banks which operate conventionally. Therefore, it is important to know how banks conduct their business activities are based on sharia principles.
3. Understanding Islamic Banking. As the previous description, it is an Islamic bank is a bank conducting business based on sharia principles. What is meant by Islamic principles based on Law Number 10 Year 1998 article 1 paragraph 13 is "the rules of Islamic law based on agreement between the bank and another party for safekeeping of funds and / or financing activities or other activities which are valued in accordance with sharia, ... ... . In Terms of Law Number 21 Year 2008 on Bank Syariah, Article 1, paragraph 7 Sharia Bank is the Bank that conduct their businesses based on Shariah principles and by type of Islamic Banks and Bank Rakyat Syariah Financing, later described in paragraph 8 of Commercial Banks Sharia is Islamic Banking which provides services in its activities in the traffic of payment. While in paragraph 12 of sharia is the principle of Islamic law in the banking activities based on the fatwa issued by an institution that has authority in determining the field of Islamic fatwa. According to Drs. H. Karnaen Perwataatmadja, MPA, the notion of Islamic bank is a bank that operates in accordance with the principles of Islamic Sharia is the bank that the operation of the procedures refer to the provisions of the Qur'an and Hadith. Of the three definitions, we can conclude that Islamic banks are banks that conduct their business activities, whether in the form of savings and other business financing and other business activities, guided by the principles or provisions of sharia (law) of Islam.
B. KINDS OF ACTIVITIES OF SHARIA BANKS STATUTORY BANKING
1. Types of Deposits. a. Giro wadiah, namely customer deposits placed with banks and can be withdrawn at any time. When customers want to yield on these funds, the bank did not provide a blanket guarantee for repayment. But if customers want the assurance of repayment and the bank, then the benefit is not concerned or for the results because the fund is categorized as a consignment. b. Savings Mudharabah, ie funds held and managed by a bank customer to make a profit. The portion of revenue sharing between customers and the bank determined in accordance with the collective agreement. Therefore, customers can perform retrieval and deposit of the savings, the benefit sharing based on the calculation of average balances. c. Mudharabah deposits, ie funds held customers and can only be withdrawn according to a predetermined period of time for the results obtained in accordance with the collective agreement.
2. Types of Financing. a. Mudharabah, which provided financing to entrepreneurs with the agreement that the businessman who manages the business fully funded. In this financing, banks and entrepreneurs set for the appropriate portion of the collective agreement and stated in the lease agreement. In the event of business failure, losses will be borne by the banks completely. While employers should only lose the income earned from energy, thoughts and expertise. b. Assalam Bai financing, ie financing for upfront payment (advance payment) granted to the businessman to purchase goods that are sent later (diferred delivery) in accordance with the collective agreement. c. Murabaha Financing, the financing for the purchase of local goods and imported by a period as agreed. Banks benefit from the increased price of goods. d. Hasan Al-qardhul financing, ie financing that are soft because employers are not obliged to share the results of the profit to the bank. This financing is for entrepreneurs who are in dire need of capital. e. Musharaka financing, ie financing for such results in mudaraba but the banks participating in the management process and the client / entrepreneur in addition to managing the business part also provides the capital. As already mentioned in the article 6 of law no. 10 years in 1998 as follows: Article 6 Banks businesses include: a. collect funds from the public in the form of deposits in the form of demand deposits, time deposits, certificates of deposit, savings, and / or other equivalent form of it. b. provide credit. c. issuing debt securities. d. buy, sell or guarantees on own risk or for the benefit and on the orders of its customers: 1) the letters diakseptasi notes including notes by the bank that the validity period of not longer than the custom in the trade papers referred to. 2) debt securities and other commercial paper that no longer validity period of the customs in the trade papers referred to. 3) paper and a letter from the state treasury of the government guarantee. 4) Bank Indonesia Certificates (SBI). 5) Bonds. 6) letter of futures trading period up to 1 (one) year. 7) other negotiable instruments with a maturity of up to 1 (one) year. e. move the money, both for its own sake or for the benefit of customers. f. placing funds on, to borrow funds from, or lend funds to other banks, either by using the mail, telecommunication facilities as well as with fiat money orders, checks or other means. g. receive payment of claims for securities and perform calculations between third parties. h. provide a place to store goods and securities. i. care activities for the benefit of another party under a contract. j. placing their funds from customer to another customer in the form of securities not listed on stock exchanges. k. Abolished by law No. 10 years in 1998. l. perform activities of factoring, credit card business and activities of the trustee. m. providing financing and / or perform other activities based on Syariah principles, in accordance with the provisions stipulated by Bank Indonesia. n. Other common activities performed by banks they do not conflict with this Act and legislation in force.
C. SHARIA LAW RELATIONSHIP BETWEEN BANKS AND customers In Terms of Law Number 21 Year 2008 regarding Islamic Banking Customers explain the meaning of paragraph 16 is the party who use the services of the Bank or Sharia and Sharia (Islamic business units). Then the next paragraph gives the details of paragraph 17 is the Customer's Customer Depositary put their money in Bank Syariah and / or UUS in the form of deposits based on the Covenant between Sharia Bank or Sharia Division and the Customer in question, And verse 18 is the Customer's Customer Investors put their money in Islamic Banking and / or UUS in the form of investments based on the Covenant between Sharia Bank or UUS and Customer concerned paragraph 19. Beneficiary Customer Facility is obtained customer funds or the equivalent, based on sharia principles. Full-regulated banking institutions are especially Institution of Islamic banking in addition to be bound by the signs of positive law sharia banking operation system is also closely related to the law of God, that offense resulted in the kemudharatan in the world and the Hereafter. Because of its unique regulatory fence off the entire Islamic banking transaction, will be tried to be discussed on the implementation of which took place in sharia banks. This is done by looking at its suitability to the prevailing law in Indonesia, namely civil Civil Code. The term treaty is a translation of the word overeenkomst. The agreement is one source of commitment. According to Article 1313 Civil Code was given the understanding the agreement as "an act by which one or more persons bind themselves to one or more other people." Sudikno Mertokusumo gives light following agreement: The agreement is a legal relationship between two or more parties based on an agreement to create legal consequences.
An agreement to be valid must be made legally binding by fulfilling the conditions for the validity of a treaty. according to Article 1320 Civil Code, which states that for the validity of agreements must meet four requirements as follows: (1) Agree that they bind themselves, (2) Ability to make an agreement, (3) A particular case, (4) A cause kosher. Terms of the agreement legally divided into first and second terms is called subjective terms, terms relating to the subject of the agreement. Meanwhile, the third and fourth terms is called an objective requirement that the conditions regarding the object of the agreement. Contrasting this condition with respect to a result if the conditions are not met. If these subjective conditions are not met then the agreement may be requested cancellation at any time. This means that as long as there has been no cancellation of the agreement was still running and remain binding on the parties until agreement is canceled by the judge at the request of either party. Meanwhile, if the objective conditions are not met, the agreement made null and void, since the original is considered an agreement never happened. If the legal requirements already fulfilled all of the agreement then the agreement can be said is legal. Treaty law in the Civil Code based on agreement or consensus of both parties, although the agreement for the purchase of goods and the price has not been submitted. Inside Indonesuia legal procedures, as not an Islamic state, Islamic law is not a positive law (not an official law and can be imposed for the infraction by the court). In other words, disputes arising between Islamic banks and their customers will not be enforced Islamic law. Treaty law applicable under Article 1320 Civil Code is a law that's positive. In the legal agreement set forth in Civil Code, for making a treaty applies the principle of freedom of contract (freedom of contract). Based on these principles, the parties are free foretell what is desired by them as the contents of the agreement (the terms and provisions of the treaty), as long as the agreement was not contrary to law, with decency and public order. After the agreement was made by the parties, the legal agreements specify that the agreement made by the parties were legally valid or binding as the enactment or law tied to the parties who made them. Once an agreement has been made by the parties, the agreement can not be withdrawn, except with the agreement of both parties or if the law requires that there is reason enough for it. So specified in Civil Code Article 1338.
1. Understanding Bank. Under Law No. 7 of 1992 on Banking, which is the bank is "a business entity which collects funds from the public in the form of deposits, and channel them to the community in order to improve the standard of living much." While based on Law Number 10 Year 1998 on Amendment of Law Number 7 Year 1992 above, is the bank is "a business entity which collects funds from the public in the form of savings and channel them to the public in the form of loans and / or other forms in order to improve the standard of living much. " Understanding the bank based on the second Act was amended, which in the Law Number 10 Year 1998 there is the addition of the words "in the form of loans and / or other forms" of savings is channeled back to the community, so understanding the bank it became clearer and broader understanding than banks based on Law Number 7 Year 1992.
2. Definition of Commercial Banks. To know the meaning of Islamic bank, it is necessary first to know about the notion of commercial banks, since the meaning of sharia banks including commercial banks based in the sense of Act No. 10 of 1998, but was not included in the definition of commercial banks in accordance with Law No. 7 year 1992. Based on Law Number 7 Year 1992, which referred to the commercial banks are "banks to offer services in payment traffic." While based on Law Number 10 Year 1998, which referred to the commercial banks are "banks which carry out business activities in the conventional and / or based on sharia principles in its activities providing payment services in the traffic." In the second sense is there a fundamental difference is that on the basis of Law Number 7 Year 1992, the definition of a commercial bank focused on providing services in payment traffic. But based on Law Number 10 Year 1998, the definition of a commercial bank focused on the way we conduct our business in the conventional and / or based on sharia principles, while the provision of services in payment traffic into additional explanation. Thus, the government has been aligning and give equal opportunity to the banks conducting business based on sharia principles with the banks which operate conventionally. Therefore, it is important to know how banks conduct their business activities are based on sharia principles.
3. Understanding Islamic Banking. As the previous description, it is an Islamic bank is a bank conducting business based on sharia principles. What is meant by Islamic principles based on Law Number 10 Year 1998 article 1 paragraph 13 is "the rules of Islamic law based on agreement between the bank and another party for safekeeping of funds and / or financing activities or other activities which are valued in accordance with sharia, ... ... . In Terms of Law Number 21 Year 2008 on Bank Syariah, Article 1, paragraph 7 Sharia Bank is the Bank that conduct their businesses based on Shariah principles and by type of Islamic Banks and Bank Rakyat Syariah Financing, later described in paragraph 8 of Commercial Banks Sharia is Islamic Banking which provides services in its activities in the traffic of payment. While in paragraph 12 of sharia is the principle of Islamic law in the banking activities based on the fatwa issued by an institution that has authority in determining the field of Islamic fatwa. According to Drs. H. Karnaen Perwataatmadja, MPA, the notion of Islamic bank is a bank that operates in accordance with the principles of Islamic Sharia is the bank that the operation of the procedures refer to the provisions of the Qur'an and Hadith. Of the three definitions, we can conclude that Islamic banks are banks that conduct their business activities, whether in the form of savings and other business financing and other business activities, guided by the principles or provisions of sharia (law) of Islam.
B. KINDS OF ACTIVITIES OF SHARIA BANKS STATUTORY BANKING
1. Types of Deposits. a. Giro wadiah, namely customer deposits placed with banks and can be withdrawn at any time. When customers want to yield on these funds, the bank did not provide a blanket guarantee for repayment. But if customers want the assurance of repayment and the bank, then the benefit is not concerned or for the results because the fund is categorized as a consignment. b. Savings Mudharabah, ie funds held and managed by a bank customer to make a profit. The portion of revenue sharing between customers and the bank determined in accordance with the collective agreement. Therefore, customers can perform retrieval and deposit of the savings, the benefit sharing based on the calculation of average balances. c. Mudharabah deposits, ie funds held customers and can only be withdrawn according to a predetermined period of time for the results obtained in accordance with the collective agreement.
2. Types of Financing. a. Mudharabah, which provided financing to entrepreneurs with the agreement that the businessman who manages the business fully funded. In this financing, banks and entrepreneurs set for the appropriate portion of the collective agreement and stated in the lease agreement. In the event of business failure, losses will be borne by the banks completely. While employers should only lose the income earned from energy, thoughts and expertise. b. Assalam Bai financing, ie financing for upfront payment (advance payment) granted to the businessman to purchase goods that are sent later (diferred delivery) in accordance with the collective agreement. c. Murabaha Financing, the financing for the purchase of local goods and imported by a period as agreed. Banks benefit from the increased price of goods. d. Hasan Al-qardhul financing, ie financing that are soft because employers are not obliged to share the results of the profit to the bank. This financing is for entrepreneurs who are in dire need of capital. e. Musharaka financing, ie financing for such results in mudaraba but the banks participating in the management process and the client / entrepreneur in addition to managing the business part also provides the capital. As already mentioned in the article 6 of law no. 10 years in 1998 as follows: Article 6 Banks businesses include: a. collect funds from the public in the form of deposits in the form of demand deposits, time deposits, certificates of deposit, savings, and / or other equivalent form of it. b. provide credit. c. issuing debt securities. d. buy, sell or guarantees on own risk or for the benefit and on the orders of its customers: 1) the letters diakseptasi notes including notes by the bank that the validity period of not longer than the custom in the trade papers referred to. 2) debt securities and other commercial paper that no longer validity period of the customs in the trade papers referred to. 3) paper and a letter from the state treasury of the government guarantee. 4) Bank Indonesia Certificates (SBI). 5) Bonds. 6) letter of futures trading period up to 1 (one) year. 7) other negotiable instruments with a maturity of up to 1 (one) year. e. move the money, both for its own sake or for the benefit of customers. f. placing funds on, to borrow funds from, or lend funds to other banks, either by using the mail, telecommunication facilities as well as with fiat money orders, checks or other means. g. receive payment of claims for securities and perform calculations between third parties. h. provide a place to store goods and securities. i. care activities for the benefit of another party under a contract. j. placing their funds from customer to another customer in the form of securities not listed on stock exchanges. k. Abolished by law No. 10 years in 1998. l. perform activities of factoring, credit card business and activities of the trustee. m. providing financing and / or perform other activities based on Syariah principles, in accordance with the provisions stipulated by Bank Indonesia. n. Other common activities performed by banks they do not conflict with this Act and legislation in force.
C. SHARIA LAW RELATIONSHIP BETWEEN BANKS AND customers In Terms of Law Number 21 Year 2008 regarding Islamic Banking Customers explain the meaning of paragraph 16 is the party who use the services of the Bank or Sharia and Sharia (Islamic business units). Then the next paragraph gives the details of paragraph 17 is the Customer's Customer Depositary put their money in Bank Syariah and / or UUS in the form of deposits based on the Covenant between Sharia Bank or Sharia Division and the Customer in question, And verse 18 is the Customer's Customer Investors put their money in Islamic Banking and / or UUS in the form of investments based on the Covenant between Sharia Bank or UUS and Customer concerned paragraph 19. Beneficiary Customer Facility is obtained customer funds or the equivalent, based on sharia principles. Full-regulated banking institutions are especially Institution of Islamic banking in addition to be bound by the signs of positive law sharia banking operation system is also closely related to the law of God, that offense resulted in the kemudharatan in the world and the Hereafter. Because of its unique regulatory fence off the entire Islamic banking transaction, will be tried to be discussed on the implementation of which took place in sharia banks. This is done by looking at its suitability to the prevailing law in Indonesia, namely civil Civil Code. The term treaty is a translation of the word overeenkomst. The agreement is one source of commitment. According to Article 1313 Civil Code was given the understanding the agreement as "an act by which one or more persons bind themselves to one or more other people." Sudikno Mertokusumo gives light following agreement: The agreement is a legal relationship between two or more parties based on an agreement to create legal consequences.
An agreement to be valid must be made legally binding by fulfilling the conditions for the validity of a treaty. according to Article 1320 Civil Code, which states that for the validity of agreements must meet four requirements as follows: (1) Agree that they bind themselves, (2) Ability to make an agreement, (3) A particular case, (4) A cause kosher. Terms of the agreement legally divided into first and second terms is called subjective terms, terms relating to the subject of the agreement. Meanwhile, the third and fourth terms is called an objective requirement that the conditions regarding the object of the agreement. Contrasting this condition with respect to a result if the conditions are not met. If these subjective conditions are not met then the agreement may be requested cancellation at any time. This means that as long as there has been no cancellation of the agreement was still running and remain binding on the parties until agreement is canceled by the judge at the request of either party. Meanwhile, if the objective conditions are not met, the agreement made null and void, since the original is considered an agreement never happened. If the legal requirements already fulfilled all of the agreement then the agreement can be said is legal. Treaty law in the Civil Code based on agreement or consensus of both parties, although the agreement for the purchase of goods and the price has not been submitted. Inside Indonesuia legal procedures, as not an Islamic state, Islamic law is not a positive law (not an official law and can be imposed for the infraction by the court). In other words, disputes arising between Islamic banks and their customers will not be enforced Islamic law. Treaty law applicable under Article 1320 Civil Code is a law that's positive. In the legal agreement set forth in Civil Code, for making a treaty applies the principle of freedom of contract (freedom of contract). Based on these principles, the parties are free foretell what is desired by them as the contents of the agreement (the terms and provisions of the treaty), as long as the agreement was not contrary to law, with decency and public order. After the agreement was made by the parties, the legal agreements specify that the agreement made by the parties were legally valid or binding as the enactment or law tied to the parties who made them. Once an agreement has been made by the parties, the agreement can not be withdrawn, except with the agreement of both parties or if the law requires that there is reason enough for it. So specified in Civil Code Article 1338.
REFERENCES
Mertokusumo, Sudikno. 1991. Know Law (An Introduction). Yogyakarta: Liberty. Perwataatmadja, Karnaen, d.k.k. 1992. What and How of Bank Islam. Yogyakarta: Bhakti Endowments Fund. Remy Sjahdeini, Sutan. 1999. Islamic banking and its position in the Indonesian banking law structure. Jakarta: Pustaka Utama Grafiti. Sumitro, Warkum. 1996. Principles of Islamic Banking and Related Agencies 9BMUI & Takaful) in Indonesia. Jakarta: PT Raja Grafindo Persada.
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