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All Journal JUSTITIA JURNAL HUKUM Jurnal Ilmu Hukum Jurnal Smart Hukum (JSH) Leges Privatae
Diana R.W. Napitupulu
Universitas Kristen Indonesia
Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Credit Insurance as a Legal Risk Mitigation Mechanism in Promoting Stability and Soundness in the Banking Industry Diana R.W. Napitupulu
Leges Privatae Vol. 2 No. 2 (2025): AUGUST-JOY
Publisher : PT. Anagata Sembagi Education

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62872/xspbkj66

Abstract

Credit insurance serves as a strategic legal and financial instrument designed to mitigate credit risk in the banking industry. By insuring potential default losses from borrowers, credit insurance operates not only as a risk transfer mechanism but also as a form of legal protection that enhances the resilience and soundness of banks. This paper applies legal protection theory and the theory of the function of law as the main analytical tools to examine how credit insurance contributes to financial stability. Using a normative legal research method, supported by statutory and conceptual approaches, this study finds that the existing regulatory framework in Indonesia while providing a foundation remains insufficient in ensuring effective legal protection for stakeholders. Thus, there is a need for regulatory enhancement, better supervision, and stronger dispute resolution mechanisms to ensure that credit insurance functions optimally in supporting banking health and financial system stability. Indonesia’s regulatory landscape for insurance and banking has evolved significantly, particularly following the enactment of Law No. 40 of 2014 on Insurance and Law No. 21 of 2011 on the Financial Services Authority (OJK). These laws outline the general principles of insurance activities and establish supervisory mechanisms to ensure market integrity. However, specific regulations on credit insurance especially as it pertains to banking risk remain underdeveloped. There is limited guidance on underwriting standards, premium calculation, claims procedures, and dispute resolution mechanisms tailored for credit insurance involving financial institutions. As such, the current framework provides only partial legal certainty and lacks the robustness required to support an effective credit insurance regime in the banking context.
Bank’s Legal Liability toward Customers in Cases of Transaction Restrictions under LPS Special Surveillance Diana R.W. Napitupulu
JUSTITIA JURNAL HUKUM Vol 10 No 1 (2026): Justitia jurnal Hukum
Publisher : Universitas Muhammadiyah Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30651/justitia.v10i1.29808

Abstract

This article analyzes the legal liability of banks toward customers arising from transaction restrictions imposed during the Indonesia Deposit Insurance Corporation’s (LPS) Special Surveillance period. The study aims to determine whether such regulatory restrictions limit or extinguish banks’ contractual, statutory, and tort-based obligations to customers. This research employs normative legal research with statutory and conceptual approaches. The findings demonstrate that compliance with mandatory regulatory directives does not automatically absolve banks from legal liability. While transaction restrictions may justify temporary non-performance of contractual obligations, they cannot be categorically classified as force majeure, because the restrictions arise from regulatory intervention linked to the bank’s financial condition rather than from unforeseeable external events beyond the parties’ control. Banks therefore remain liable where restrictions are inadequately disclosed, applied arbitrarily, or attributable to prior mismanagement that precipitated the bank’s financial deterioration. The study further finds that regulatory intervention does not result in a full transfer of liability from banks to the state or LPS, as LPS’s mandate as a public legal entity is confined to supervisory and resolution functions rather than assuming private law responsibilities toward customers. Consequently, customers retain access to legal remedies through civil claims, administrative complaints, and judicial review of regulatory actions. This article concludes that clearer statutory allocation of liability, enforceable disclosure standards, and transparent procedures during Special Surveillance are essential to ensuring legal certainty and balancing financial system stability with effective customer protection.
Legal Convergence between Banking Law and Commodity Futures Law in the Practice of Bullion Banking Diana R.W. Napitupulu
Leges Privatae Vol. 2 No. 5 (2026): FEBRUARY-JOY
Publisher : PT. Anagata Sembagi Education

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62872/xdxa5474

Abstract

This article examines the legal convergence between banking law and commodity futures law in bullion banking. The financialization of gold has shifted its role from a purely tangible commodity to a dual-function asset that operates as both a tradable commodity and a financial instrument, thereby blurring the regulatory boundaries between prudential banking supervision and commodity futures regulation. Bullion banking includes gold accounts, gold-based financing, custody services, and gold-linked derivatives such as swaps and forwards. These activities resemble traditional banking intermediation when banks accept gold deposits or create claims over gold, while simultaneously mirroring commodity futures trading through derivative contracts. This creates regulatory tension, as banking law prioritizes systemic stability, capital adequacy, and depositor protection, whereas commodity futures law emphasizes market integrity, transparency, and investor protection. Legal convergence is most evident in three areas: unallocated gold accounts functioning like monetary deposits, over-the-counter gold derivatives resembling futures contracts, and custody and clearing mechanisms overlapping with exchange-based infrastructures. In Indonesia’s sectoral regulatory system, where banking and commodity futures oversight are institutionally separated, bullion banking may generate jurisdictional ambiguity, inconsistent risk standards, and opportunities for regulatory arbitrage. The unclear legal classification of gold as property, financial instrument, or contractual claim further complicates ownership, insolvency treatment, and priority rights, ultimately affecting legal certainty and systemic resilience.  
Convergence of Banking Law and Commodity Futures Law in the Practice of Bullion Banking Diana R.W. Napitupulu
Jurnal Ilmu Hukum Vol. 15 No. 2 (2026): Jurnal Ilmu Hukum
Publisher : Fakultas Hukum Universitas Riau

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30652/eb6gmw77

Abstract

This research examines the evolving legal convergence between banking law and commodity futures law in the governance of bullion banking activities. Bullion banking represents a hybrid financial practice in which gold functions simultaneously as a physical commodity, a financial asset, and an underlying instrument in derivatives markets. Through various mechanisms such as unallocated gold accounts, gold lending and leasing, swaps, and over-the-counter derivatives transactions, bullion banks perform activities that both resemble and combine the functions of deposit-taking institutions and commodity market intermediaries. This dual characteristic challenges traditional regulatory classifications and creates tensions between prudential supervision in the banking sector and market conduct regulation in the derivatives sector. Using a normative juridical approach supported by comparative analysis of several jurisdictions, this research evaluates how existing legal frameworks regulate capital adequacy, asset segregation, insolvency mechanisms, transparency, and systemic risk in gold-related transactions. The analysis reveals the presence of regulatory fragmentation, potential overlap of supervisory authorities, and legal uncertainty regarding the proprietary status of gold claims, particularly within unallocated gold account structures. Such conditions may create opportunities for regulatory arbitrage while simultaneously increasing risks to financial system stability. The findings of this research indicate that a functional and activity-based regulatory model offers a more coherent approach to addressing the hybrid nature of bullion banking. Therefore, clearer legal classification of bullion-related products, harmonization of prudential and derivatives standards, and stronger cross-sector coordination among supervisory authorities are required in order to establish a more integrated legal framework, safeguard market integrity, and accommodate financial innovation in precious metals markets.
The Authority of the Indonesia Deposit Insurance Corporation to Initiate Bankruptcy Proceedings against Controlling Shareholders of Non-Systemic Failed Banks: Reconstructing Personal Liability within the Indonesian Banking Law Regime Diana R.W. Napitupulu
Jurnal Smart Hukum (JSH) Vol. 4 No. 2 (2026): October-January
Publisher : Inovasi Pratama Internasional. Ltd

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55299/jsh.v4i2.1688

Abstract

This article examines the legal authority of the Indonesia Deposit Insurance Corporation (Lembaga Penjamin Simpanan/LPS) to initiate bankruptcy proceedings against controlling shareholders of non-systemic failed banks, focusing on the reconstruction of personal liability within the Indonesian banking law regime. The study departs from the prevailing scholarly focus on bank resolution mechanisms and institutional liability, addressing a normative gap concerning the personal accountability of controlling shareholders whose actions contribute to bank failure and subsequent losses borne by LPS. Using a normative juridical method with statutory, conceptual, and doctrinal approaches, this research analyzes the interplay between the Law on Deposit Insurance Corporation, Banking Law, Company Law, and Bankruptcy Law. The findings demonstrate that LPS possesses legal standing as a creditor by virtue of subrogation after fulfilling its statutory obligation to pay insured deposits. This status provides a legitimate basis for LPS to pursue bankruptcy claims not only against failed banks but also against controlling shareholders, provided that their factual control, unlawful conduct, or gross negligence can be established as the proximate cause of the bank’s failure and the depletion of insured funds. The article further argues that the principle of limited liability is not absolute and may be lawfully pierced through a causality-based construction of personal responsibility consistent with the doctrine of piercing the corporate veil. This study proposes a reconstructed legal framework that articulates objective parameters for imposing personal bankruptcy liability on controlling shareholders, thereby preventing arbitrary enforcement while strengthening the protection of public funds administered by LPS. By integrating banking law, corporate law, and bankruptcy law, this article contributes a novel analytical model that enhances legal certainty, judicial consistency, and the effectiveness of asset recovery in cases of non-systemic bank failure in Indonesia.
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