Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6, 5329-5335 2024 Publisher: Learning Gate DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate © 2024 by the authors; licensee Learning Gate * Correspondence: nellysinaga1964@gmail.com From the standpoint of progressive law, the idea of legal protection for land deed officials in the electronic mortgage system Nelly Azwarni Sinaga1*, Ida Nurlinda2, Muhammad Yamin3, Zaidar4 1,3,4Faculty of Law, Universitas Sumatera Utara, Medan Indonesia; nellysinaga1964@gmail.com (N.A.S.) yaminlubis16@gmail.com (M.Y.) zaidarperwira@gmail.com (Z.) 2Faculty of Law, Universitas Padjajaran, Semarang, Indonesia; ida.nurlinda@unpad.ac.id (I.N.). Abstract: The Electronic Mortgage Rights System was established through the Regulation of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency number 5 of 2020. The Electronic Mortgage Rights System is an integrated electronic registration service for Mortgage Rights aimed at maintaining data and providing efficient and effective services in the registration of Mortgage Rights. However, this Electronic Mortgage Service has implications for the position and legal responsibilities of the Land Deed Official as stipulated in Article 20, paragraph (4) of the Regulation of the Minister of Agrarian and Spatial Planning / Head of the National Land Agency number 5 of 2020. Therefore, based on the concept of progressive legal theory, a Land Deed Official is entitled to legal protection from the substantive errors of a regulation that is less favorable. This research aims to examine the issues regarding how the concept of legal protection for Land Deed Officials within the electronic mortgage system is viewed from the perspective of progressive law. This research method is of a Juridical Normative nature with a prescriptive approach. Based on the research findings, it can be concluded that from the perspective of legal protection theory and progressive legal theory, it is incorrect to burden the Land Deed Official with legal responsibility for the accuracy of data and the validity of documents that were not created by them, but rather provided by the data and document owners who should be responsible for the accuracy of that data and the validity of those documents. It is also incorrect for the Land Deed Official to create and sign a "Statement" regarding the accuracy of data and the validity of documents uploaded through the electronic Mortgage Registration System, as this "Statement" should be made and signed by the Debtor and Creditor as the owners of the data and documents. Therefore, the Land Deed Official deserves legal protection from regulations that substantially do not favor them, as these impose responsibilities beyond their authority. Based on that conclusion, it is recommended to reconstruct Article 20 paragraph (4) of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Regulation number 5 of 2020, and to transfer legal responsibility to Debtors and Creditors as the parties involved in the Electronic Mortgage System, in order to build a legal framework that aligns with the future legal ideals in Indonesia, through a holistic approach that includes legal reform, institutional capacity building, and strengthening ethics, morals, and professionalism in positions. Keywords: Electronic mortgage system, Legal protection, Land deed officials, Progressive legal theory. 1. Introduction The Rights of Guarantee is the National Guarantee Law aimed at fulfilling the mandate of Article 51 of Law Number 5 of 1960 concerning the Principles of Agrarian Law (Yasa, 2021), in an effort to create a unification of land law and guarantees of land rights. The definition of a Mortgage according to Law Number 4 of 1996 Article 1 paragraph (1) is a security right imposed on land rights as referred to in the Basic Agrarian Law, along with or without other objects that are an integral part of the land, for the repayment of debts that grants a priority position to certain creditors over other creditors (Schwartz, 1989). One of the objectives of the enactment of the Mortgage Law number 4 of 1996, 5330 Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6: 5329-5335, 2024 DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate according to A.P. Parlindungan, is to implement the clear mandate of Article 51 of the Basic Agrarian Law, thereby eliminating various interpretations regarding the guarantee institution, and simultaneously carrying out the unification developed by the Basic Agrarian Law (HINDRIKS & GUALA, 2015), which is the Mortgage institution as a debt guarantee institution with land as collateral. The same sentiment was expressed by Maria Samdjono, who stated that the enactment of the Law on Mortgage Rights is very significant in creating a unification of national land law, particularly in the area of land security rights (Toulmin, 2009). In 2020, an integrated electronic Mortgage Rights service was implemented based on the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation number 5 of 2020. This Ministerial Regulation is one of the implications of the convergence of land guarantee law and telematics law, giving rise to land digitization that results in a change in the concept of Mortgage Rights registration from a conventional system to a digital or electronic system (Rahim et al., 2024). The electronic mortgage registration is generally referred to as Electronic Mortgage. Electronic Mortgage is a service system for registering mortgages that utilizes electronic devices through an application service launched by the Ministry of Agrarian Affairs and Spatial Planning / National Land Agency, in accordance with the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Regulation number 5 of 2020 concerning Integrated Electronic Mortgage Services. The electronic mortgage service is known as the Electronic Mortgage System (Sistem HT-el) (Mukhidin & Hamzani, 2022). The Electronic Mortgage Rights System (HT-el System) as referred to in the Regulation of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Number 5 of 2020 (Wardhana et al., 2020), is a series of processes for the service of Mortgage Rights aimed at maintaining land registration data, conducted through an integrated electronic system (Junaid et al., 2024). Several types of services included in this Electronic Mortgage System consist of the registration of mortgages, the transfer of mortgages, changes to the creditor's name, and the cancellation of mortgages (Roya). Pragmatically, the Electronic Mortgage Rights System arises from the convergence of mortgage guarantee law with telematics law (Thomas, 2009), particularly in the concept of mortgage registration services that transform from a conventional system to an electronic system. This digital-based mortgage registration service also has implications for the position and responsibilities of the Land Deed Official (Pakpahan et al., 2022), which has undergone a conceptual change compared to the provisions of the Mortgage Law. This includes the obligations of the Land Deed Official arising from the implementation of the Electronic Mortgage System as a legal consequence of the enactment of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Regulation Number 5 of 2020. 2. Method The research method used is a type of normative legal research, based on literature study. The data source is obtained from secondary data derived from primary legal materials, secondary legal materials, and tertiary legal materials. The nature of the research is Prescriptive Analysis, which aims to study legal norms, legal objectives, values of justice, validation of legal rules, and legal concepts. The approach used in this research employs a legal approach. (Statute Approach). The legal regulations governing the electronic mortgage system will align the notary law with the implications of implementing an electronic system for the issuance of mortgage certificates. 3. Discussion 3.1. The Legal Implications of the Electronic Mortgage System on the Position and Responsibilities of PPAT One of the legal consequences of the enactment of the Minister of Agrarian Affairs and Spatial Planning (Tubío-Sánchez et al., 2013) / Head of the National Land Agency Regulation number 5 of 2020 will certainly have implications for the position and responsibilities of the Land Deed Official (PPAT) in creating and registering legal actions in the field of land rights guarantees. The PPAT is responsible for submitting the Deed of Granting Mortgage Rights (APHT) and the required supporting documents through an electronic system that is integrated with the Electronic Mortgage Rights system 5331 Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6: 5329-5335, 2024 DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate (HT-el) as mentioned in Article 10 of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Regulation number 5 of 2020. Referring to the provisions of Article 10 of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Regulation number 5 of 2020 (Hutagalung et al., 2022) in conjunction with Article 1 paragraph (5) of Law number 4 of 1996 concerning Mortgage Rights, the position of PPAT can be viewed from two dimensions , namely: a. The position as an official authorized to create a Deed of Grant of Mortgage. Legally, the Deed of Mortgage provides a guarantee of legal certainty in the legal relationship between the Debtor and the Creditor, which creates binding rights and obligations between them. The Land Deed Official (PPAT) ensures the formal accuracy of the obligations made by the Debtor with the Creditor in the Deed of Mortgage, thus serving as valid and strong evidence for both the Debtor and the Creditor, as well as the PPAT itself. b. The position as the sender of APHT and the required documentation through an electronic system integrated with the electronic Mortgage Rights system. The authority as the sender of deeds and documents is determined in Article 7, paragraphs (1) and (2) of the Regulation of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Number 5 of 2020, where the PPAT is designated as the "User," thus having rights and obligations as a partner of the Land Office in utilizing the Electronic Mortgage System (Sulaiman & Gunadi, 2024). The position of PPAT in those two dimensions gives rise to responsibilities in two dimensions as well (Taylor, 2001), namely: a. The responsibility for the deed made by the Land Deed Official, in this case, the Deed of Granting Mortgage; and b. Responsibility for the requirement documents submitted/uploaded by the Land Deed Official in the Electronic Mortgage Registration service. The position of the PPAT as a user of the Electronic Mortgage System gives rise to legal responsibilities both civil and criminal as stipulated in Article 20 paragraph (4) of the Regulation of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency number 5 of 2020. This position and accountability are reinforced by the obligation of the PPAT to create and upload a "Statement Letter" regarding the validity and accuracy of the data in the documents required for the registration of Mortgage Rights. In the statement, the second paragraph includes a phrase stating that the documents and data uploaded to the electronic system are true and in accordance with the physical documents, and that the Land Deed Official is responsible in accordance with their duties and position as the Land Deed Official. The signing of the Statement Letter can be interpreted as the Land Deed Official being responsible for the accuracy of the attached document data (Lemieux, 2017), which must correspond with the physical documents and data held by the Land Deed Official. This is a requirement that must be fulfilled in the application for electronic registration of Mortgage Rights. If these requirements are not met, the registration application cannot be submitted for processing. As a result, the Mortgage Rights cannot be registered, so the Mortgage Rights Certificate cannot be issued. The consequence is that the legal act of encumbering the Mortgage Right does not guarantee legal certainty because it is not registered (Nasution et al., 2021). The statement in that sentence can impose legal responsibility on the Land Deed Official as a party directly involved in the electronic registration process of Mortgage Rights, particularly concerning the accuracy of the uploaded data and documents, which implies accountability for the material truth of the data and documents. As legal doctrine states, material truth refers to true or actual truth, which falls under the domain of criminal law, while the Land Deed Official operates within the domain of civil law, which only holds limited responsibility for formal truth. 3.2. The Legal Responsibilities of Land Deed Officials from the Perspective of Law and Profession The form of accountability of the Land Deed Official in relation to their profession adheres to the principle of liability based on fault. Therefore, the Land Deed Official must be held accountable if any errors occur in the deed they have created. If the elements of the violation in question originate from the 5332 Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6: 5329-5335, 2024 DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate parties involved, then the Land Deed Official cannot be held accountable. However, the accountability of the Land Deed Official for the deed that has been created, if it is proven to contain false information from the parties, cannot be legally demanded from the Land Deed Official as the creator of the deed, because the Land Deed Official merely records or documents a legal act performed by the parties/submitters in the deed. False statements made by the parties are the responsibility of the party concerned. The Land Deed Official, in carrying out their duties and profession, can be broadly classified as follows: they have two responsibilities, namely ethical responsibility and legal responsibility, in relation to the deeds created by the Land Deed Official: a. Legal responsibility, which refers to the responsibility related to the deeds made by the Land Deed Official, which consists of: 1) Administrative Responsibility, which is based on the Regulation of the Head of the National Land Agency Number 1 of 2006, the implementing regulation of Government Regulation Number 37 of 1998, which has been amended by Government Regulation Number 24 of 2016, regarding the Amendment of Government Regulation Number 37 of 1998 concerning the Regulation of the Position of Land Deed Officials. 2) Civil liability, based on the provisions of Article 1365 of the Civil Code, is fulfilled by four elements: the existence of an act, the presence of an element of fault, the existence of the loss suffered, and the causal relationship between the fault and the loss. 3) Criminal Responsibility, which is fulfilled when the provisions of Article 263 paragraph (1), 266 paragraph (1), 242 paragraph (1), and 372 of the Penal Code are met. b. Ethical Responsibility, which refers to the responsibilities associated with the profession of Land Deed Officials, is based on the Decree of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency Number: 112/KEP-4.1/IV/2017 dated April 27, 2017, concerning the Code of Ethics for Land Deed Officials. c. Moral responsibility, which is based on the philosophical values of Pancasila, particularly the value of social justice for all Indonesian people. 3.3. Legal Protection for Land Deed Officials in the Electronic Mortgage System According to Satjipto Rahardjo, legal protection is the effort to safeguard an individual's interests by allocating a certain power to them to act in accordance with those interests. Phillipus M. Hadjon, in Satjipto Rahardjo, explains that legal protection for the people is a government action that is both preventive and responsive. Preventive legal protection aims to prevent disputes from occurring (Stathis & van den Herik, 2024), which directs the government's actions to be cautious in decision-making based on discretion. Responsive protection aims to address disputes that have arisen, including their handling in judicial institutions. The Land Deed Official, as a public officer in carrying out their profession in the field of legal service to the community, must be protected by law to ensure legal protection, in order to achieve legal certainty. The aspect of legal protection for Land Deed Officials within the realm of legislation related (Kharisma et al., 2022) to Land Deed Officials is more internal or administrative in nature. The regulations violated by a Land Deed Official are the standard measures of professionalism that should be adhered to by all Land Deed Officials as representatives of the State's authority in the creation of authentic deeds in the field of land. The Land Deed Official, as a public officer, holds a very important position in helping to create certainty, order, and legal protection for the community. A Land Deed Official is usually regarded as an official where one can obtain reliable legal advice (Anandari et al., 2023). Everything that is written and established (confirmed) by him is true; the Land Deed Official is a strong document creator in a legal process. Satjipto Rahadjo, as the proponent of progressive law, states that law is not merely logic; more than that, law is genuinely a science that always strives to understand and see the connections between legal texts and the underlying factors behind the law. Progressive law is the idea of a legal science that flows, unwilling to get trapped in the status quo, which ultimately leads to stagnation. More than that, progressive law aims to remain faithful to the fundamental principle that "the law is for humanity, not 5333 Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6: 5329-5335, 2024 DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate the other way around (Grimm et al., 2018)." Essentially, the law must always flow in accordance with the dynamic and changing developments of humanity over time (Davies, 2017). In this way, all the issues faced by humanity can be answered by the law fairly. The main mission of the progressive legal paradigm is the ongoing process of searching for truth and searching for justice that never comes to an end. Both missions cannot be considered fulfilled merely by the presence of language in legal texts (Fabian, 1983). The reality on the ground is that the law often faces crucial problems that blur both missions, as the law is often used as a tool to legitimize actions that undermine the values of justice within society. Lili Rasjidi and I.B Wysa Putra also argue that the law can be utilized to achieve protection that is not merely adaptive and flexible, but also predictive and anticipatory. Based on pragmatic studies, within the framework of Legal Protection theory and Progressive Law theory (Zipursky, 2000), the Land Deed Official should receive legal protection in carrying out their duties and profession, and must be exempted from legal responsibility related to false documents and/or false statements in the implementation of the Electronic Mortgage System, for the following legal reasons: 1) Based on the jurisprudence of the Supreme Court of the Republic of Indonesia Decision number 702K/Sip/1973, the Land Deed Official, as a Public Official, is only authorized to confirm or record and document in writing and authentically the legal actions of the parties, based on the intentions and formal data submitted by the applicants to the Land Deed Official. Subsequently, the information and formal data/documents of the parties are specifically outlined in the deed, in this case, the Deed of Granting Mortgage Rights. 2) The Land Deed Official who carries out their duties and responsibilities based on legal regulations cannot be held criminally liable (Stessens, 1994), for the creation of deeds based on false statements from the parties involved, and cannot fulfill the elements of the crime of forgery. In accordance with the Principle of Legality Nullum crimen, nulla poena sine praevia lege poenali, it means that there is no criminal act, there is no punishment. Chairul Huda stated that criminal acts only concern the issue of 'actions', while the question of whether the 'person' who committed the act can be held accountable is a different matter. 3) The authority and responsibilities of a Land Deed Official have been clearly established in Government Regulation Number 24 of 2016 concerning Amendments to Government Regulation Number 37 of 1998 regarding the Regulations on the Position of Land Deed Officials. The authority of the Land Deed Official in creating authentic deeds in the field of transfer and encumbrance of land rights falls within the domain of civil law. 4) The Land Deed Official Act or authentic deed does not guarantee that the parties "speak the truth," but what is guaranteed by the authentic deed is that the parties "speak truthfully" as stated in the agreement deed of the parties. The Deed of Granting Mortgage is a party deed that should be included in the party deed. Thus, the truth of the statements made by the parties appearing before the Land Deed Official (Sugiarto & Rahayu, 2021), as contained in the deed, is not the responsibility of the Land Deed Official, because the Land Deed Official is not a party to it. Therefore, they are only formally responsible and accountable for ensuring that the parties "speak truthfully" as described in the deed and are not responsible for any false statements or lies. 5) The Deed of the Land Deed Official that contains incorrect information or lies, or is based on false documents submitted by the applicant without the knowledge of the Land Deed Official, does not automatically render the deed false; rather, the status of the deed remains original. This is because when the parties appear to explain the legal actions taken, the Land Deed Official assumes that what is presented, both the statements and the documents, is true or authentic. If we analogize it with the principle of presumption of innocence, then the Land Deed Official should assume that the statements and documents submitted by the parties are true and not false. 6) The Land Deed Official is merely the sender of deeds and documents through the Electronic Mortgage System facilitated by the Ministry of Agrarian Affairs and Spatial Planning / National Land Agency (as stated in Article 5 of the Regulation of the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency number 5 of 2020). 5334 Edelweiss Applied Science and Technology ISSN: 2576-8484 Vol. 8, No. 6: 5329-5335, 2024 DOI: 10.55214/25768484.v8i6.3188 © 2024 by the authors; licensee Learning Gate 4. Conclusion Based on the perspective of legal protection theory and progressive legal theory, it can be concluded that it is incorrect to burden the Land Deed Official with legal responsibility for the accuracy of data and the validity of documents that were not created by them, but rather provided by the data and document owners who should be responsible for the accuracy of that data and the validity of those documents. It is also incorrect for the Land Deed Official to create and sign a "Statement" regarding the accuracy of data and the validity of documents uploaded through the electronic Mortgage Registration System, as that "Statement" should be created and signed by the Debtor and Creditor as the owners of the data and documents. Therefore, the Land Deed Official deserves legal protection from legal issues that may arise in the future due to false data, information, and documents. The Land Deed Official deserves legal protection from the legal regulations as outlined in the Minister of Agrarian Affairs and Spatial Planning / Head of the National Land Agency Regulation number 5 of 2020, which substantially does not favor the Land Deed Official as it imposes responsibilities beyond their authority. The results of this research aim to establish a legal framework that aligns with the future legal ideals in Indonesia. A holistic approach is necessary, particularly concerning the civil and criminal liabilities imposed on Land Deed Officials for fraudulent documents as the basis for issuing Electronic Mortgage Certificates. (SHT-el). This approach includes legal reforms, enhancement of institutional capacity, and strengthening ethics, morals, and professionalism in positions. 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