Prinsip Keadilan pada Acara Pembuktian dalam Penyelesaian Sengketa Konsumen Melalui Arbitrase di Indonesia

Abstract

UUPK (Law on Consumer Protection) is not intended to hamper people‟s businesses, but it supports healthy business through consumer protection, instead. The principle of justice in this listening to the evidence is considered important due to three reasons: first, UUPK is considered weak, the formula of substantial norms (material law) and formal law (law of procedure) are contrary to the other laws so that it is assumed that the formula of some norms of UUPK is not in accordance with the national legal system and is difficult to be harmonized. Secondly, legal norm in settling consumer dispute with the system of reversal of the burden of proof bring about injustice for consumers and business people and give an opportunity for the third party to manipulate evidence. Thirdly, it seems that the process of implementing the settlement of consumer dispute does not guarantee justice except arbiters are accurate and fair in distributing burden of proof and providing fair assessment on it. The research problems are as follows: how about listening to the evidence in positive law concerning the settlement of consumer dispute through arbitration, how about the principle of justice in listening to the evidence in settling consumer dispute through arbitration in Indonesia, and how about the system of burden of proof in settling consumer dispute through arbitration in Indonesia which provides justice for stakeholders. The research uses juridical normative method referred to legal norms and principles in legal provisions and in court‟s verdicts, based on the paradigm of dynamic relations among theories, concepts, and data which become the feedback or fixed modification of the theories and concepts based on the collected data. It also uses explorative method which digs up concrete thoughts and legal norms in law on consumer protection and prescriptive method which offers the concept of solving problems (problem solving) which is not merely to describe something as it is. The result of the research shows that the system of evidence in UUPK in arbitration in a model of evidence according to the presumption of liability principle from the common law countries. The system of evidence in UUPK is different from that in arbitration universally so that it cannot be harmonized and will eventually cause injustice for business people and consumers. The system of evidence in arbitration in settling consumer dispute is highly dependant on the pinterest of the parties involved in it. Therefore, the system of evidence in Indonesia should be adjusted to the universal principle of justice which is not contrary to the freedom of judges (arbiters) in reaching a verdict. Balance of proof is not only based on the liability of business people but also based on the balance between consumers‟ evidence and business people‟s. The realization of the principle of justice characterized by national law in listening to the evidence in consumer dispute through arbitration will eventually provide justice for all Indonesian people. The norm of reversal burden of proof system in UUPK should be reformulated in the national legal system characterized by national identity, Pancasila as the legal 5 ground which is humanly, just, respectful and has social justice among the people, the countries, and with God so that the purpose of UUPK can be achieved and can be harmonized with the other legal norms. The principle of justice has to be realized based on Pancasila. Judge and Arbiter empowerment should be increased in settling consumer dispute by understanding the universal principles of arbitration. The procedure of examining simple claim should be optimized according to the Directive of the Supreme Court about consumer disputes in Indonesia.