The Juridical Review On Legal Position Of Illegal Online Loans Based On Article 1320 Of The Civil Code (Burgerlijk Wetboek)

Abstract

The condition of the increasing need for funds in the pandemic era, as well as the difficulty of access to funding to banks for some people and MSE actors, make online loans an alternative for the community to overcome the financial constraints they are facing.  However, along with the increase in online loans, it turns out that there are also online loans that are not registered and licensed at the OJK or what is called an illegal online loan.  This study aims to analyze the practice of organizing online loans (financial technology) that occurs in Indonesia, as well as the legal position of illegal online loans based on Article 1320 of the Civil Code and its legal consequences.  The study was conducted qualitatively using a statutory approach and a case approach with a normative type of juridical research. The data that have been obtained are analyzed qualitatively. The results of the study show first that it is undeniable that in the era of globalization and digitalization as it is today the presence of online loans (financial technology) is a necessity as an alternative for the community to overcome the financial constraints it is facing, which offers convenience to its users, both from access to services, terms and speed. However, along with the development of the rampant emergence of Online Loans, it is also accompanied by the emergence of illegal Online Loans, which has caused illegal borrowers to become parasites that eat away at public trust in the official (legal) P2P Lending industry.  So that in practice it is important to pay attention first to whether the Online Loans is a legal or illegal Online Loans before someone applies for a loan (credit).  Secondly, the legal position of Illegal Online Lending under civil law under Article 1320 of the Civil Code is invalid and has no binding legal force for the parties. In addition to the form of illegal online loans that contain defects of will, the process of the Illegal Online Loans also contains elements of fraud, oversight, and violating laws. This is contrary to the legal rules of the agreement as stipulated in Article 1320, Article 1321, Article 1322, and Article 1337 of the Civil Code. Therefore, the legal relationship arising from the agreement born due to the agreement in the Illegal Online Loan further has no legally binding force for the parties.