외국인의 인도네시아 토지차명계약에 관한 고찰: 인도네시아 대법원 선고 Nomor399PK/Pdt/2020 판결을 중심으로

Indoensia’s Basic Law on Land does not allow foreign citizens to own land. However, it is not rare to see foreign citizens who desire to own land using borrowed-name contracts, and many of them actually owned it. The purpose of this study is to understand the legal effect of borrowed-name contracts of land by foreign citizens, which contains breaches of the law, and the responsibilities of notaries who fill in the notarial deeds, in Indonesia. The Indonesian court recognizes the content transcribed in certificates of land ownership rights and notarial deeds, as it is, so it does not dispute the breaches of borrowed-name contracts contained in notarial deeds. It rather judged that the dependent’s (Indonesian people) act of selling the land without the plaintiff’s (foreign citizens) consent or recognition in violation of any contract terms of notarial deeds is an illegal one and ordered the dependent to pay the plaintiff’s investment and its interest. In this regard, critics criticize the court’s judgment, because the borrowed-name contract is fundamentally invalid as it violates the Basic Law on Land, and does not fulfill the legal requirements of the contract in accordance with Article 1320 of the Civil Code(KUHPer), which undermines the principle of nationality. They also argue that notaries cannot be free from penalty, criminal punishment and liability for compensation according to the civil law. In accordance with the judicial precedent, foreign citizens who own land by using borrowed-name contracts would be more likely to get back their investment, if they fill in notarial deeds. However, considering the popular public’s opinion which strongly asserting the nullification of such contracts, it is suggested that the foreign citizens who hope to buy land or buildings initially plans to own land based on the incorporation, or to use the right of land use or lease.