ASPEK HUKUM TRANSAKSI EFEK DENGAN SISTEM OTOMASI DI BURSAK EFEK : STUDI TENTANG TRANSAKSI EFEK DENGAN JATS DI BURSA EFEK JAKARTA

Abstract

As one of the stock exchanges in Indonesia, JSX' efforts to create an efficient, liquid, fair, and credible stock exchange : and in order to increase stock exchange activity, it has been developed automated system of share trading. This system will be implemented in four phases. The first phase and it has operated, is the operationalization of Jakarta Automated Trading System (JATS) in share trading mechanism. Futher more , the second phase will be started, namely remote trading mechanism, whereas the third and fourth phases, respectively, will be implemented are the scripless trading and book entry settlement. JATS is chosen because it has various superiorities, expecially in technical operational aspect. Its system has a computer base which is combined with the system of settlement, of centralized depository, and of broker accountancy, causes the activity of stock exchange runs very fast. More over, it is supported by supporting sub system namely the integrated control so that it is able to monitor the activity of stock exchange member, both emiten data, and statistical data, as will as trading history. Besides that, JATS also has an eminence from economical aspect because it can increase volume, value, and frequency of trading. But in other side, the implementation of JATS causes problems from law aspect which covers administrative law, civil law, and criminal law aspect. The influence of Lutomated system over the administrative law aspect is very prominent in licensing sector, in processing of listing, in primary market, and in secondary market. While the greatest influence over the existence of substantive laws (both civil / commercial, UUPT, and criminal law) relates to the problem of legal trading. Although the cornerstone of legality concerning with automated share and it is done by means of book entry settlement. Whereas, according to the stipulation of substantive law, the trasnsferring of share must be done by levering and it must be registered on list of share holders. If the stipulation of substantive laws (civil code, commercial code, UUPT) are interpreted as strict law. so it will always be found law collision which is difficult to be solved. There are several problems of laaw aspect which are prominent in connection with the application of trading automated system, among others are the problem of the on behalf of share nominee, about the momentum certainty of the transferring of proprietary rights toward the on behalf of share, the problem of share ownership evidence, and the problem of securities pawning. In addition to the above law aspect, the problem of transferring failure and or payment failure and its law settlement is necessary to be examined and analyzed, because one of the causes of share transferring failure happening is the ABSE can not transfer the share to the KDEI in the time of T + 4. This is due to the involved stock exchange, it means that the member of stock exchange executes short selling like the case of Pikko Bank for instance. The short selling practice becomes conspicuons because Indonesian capital market is very unstable for the happening of corners. This is more and more aggravated by the unavailability of the regulational explanation, and the law enforcement of Securities Exchange Commission toward the actors of corners, because of availability of tendency of Securities Exchange Commission's discretion to settle various actions of capital market violation / case which takes place in an administrational manner, although the actions (like the corners) are qualified as a crime. The other prominent problem is the law settlement of the transferring and or payment failures which is sometimes settled in an internal manner in JSX and Securities Exchange Commission (SEC). This is