PENERAPAN ASAS PEMBALIKAN BEBAN PEMBUKTIAN DALAM PENYELESAIAN SENGKETA KONSUMEN

ADHAPER: Jurnal Hukum Acara Perdata

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Field Value
 
Title PENERAPAN ASAS PEMBALIKAN BEBAN PEMBUKTIAN DALAM PENYELESAIAN SENGKETA KONSUMEN
 
Creator Syam, Misnar
 
Subject Shifting the burden of proof; Consumer protection; Consumer dispute.
 
Description Consumer dispute related to violation of the consumer rights by businessman. Article 45 of Consumer Protection Law provides that the dispute may be settled by out of court dispute settlement or through litigation. In Indonesia, out of court dispute settlement of consumer disputes is conducted under the authority of Consumer Disputes Settlement Body (BPSK), while in litigation mechanism exercised with submission by the consumer personally, class action, or NGO claim. Consumer dispute settlement is part of civil litigation. According to Article 163 HIR/ 283 RBg, the party who alleges that he has a right shall proof his allegation. While, according to Article 19(5) of Consumer Protection Law, the businessman may be exempted from its duty, if it can proof that the damages suffered by the consumer is because of the consumer fault itself. Therefore, the businessman must prove that it did not commit any fault (shifting the burden of proof). The principle of shifting the burden of proof has adopted by Consumer Protection Law because the consumer has no suffi  cient knowledge of materials, production process, and distribution process which done by the businessman regularly. The Consumer Protection Law has no clear provision on the implementation of shifting the burden of proof, while the same situation is also found in Supreme Court Regulation No. 1 of 2006 concerning Appeal on the Judgment of BPSK. Thus, there are inconsistency implementations on the shifting of the burden of proof between on case by case. It depends on the comprehension knowledge of the judges. Such situation may lead to ineffective implementation of Consumer Protection Law.
 
Publisher Departemen Hukum Perdata
 
Contributor
 
Date 2018-10-10
 
Type info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
 
Format application/pdf
 
Identifier http://jhaper.org/index.php/JHAPER/article/view/66
10.36913/jhaper.v4i1.66
 
Source ADHAPER: Jurnal Hukum Acara Perdata; Vol 4, No 1 (2018): Januari – Juni 2018; 91-108
2579-9509
2442-9090
 
Language eng
 
Relation http://jhaper.org/index.php/JHAPER/article/view/66/72
 
Rights Copyright (c) 2018 Jurnal Hukum Acara Perdata ADHAPER
 

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