Corresponding Author: Anindya Primadigantari
E-mail: [email protected]
INTRODUCTION
The modern era, which is supported by technological
advances, has progressed dynamically, this can be seen by the existence of
digital applications that offer many conveniences for its users, one of which
is in the field of Commodity Futures Trading. In Indonesia, Forex trading is
the most popular type of trading, however, for a long period of time, Foreign
Exchange Transactions or better known as Forex Exchange. Forex Exchange is
considered a high-risk business and requires large capital According to (Hutabarat, 2010). This thought persisted until a gap emerged for
medium and small scale investors to enjoy forex market transactions. In
general, Forex trading is done manually and requires continuous time to monitor
market movements with technical analysis, which is an analysis method that
relies on future price trends based on past price developments also balanced by
looking at charts, trend lines, support and resistance levels, pattern numbers
and mathematical analysis to identify trading opportunities Meanwhile,
fundamental analysis is an analytical process that allows to analyze economic,
social conditions, business reports, indications of new government policies and
also political conditions. There are even some traders who combine the two
analyzes in reading the direction of the market trend. Therefore, it is
necessary to develop a system by taking buying and selling business in an
automated form by using an Expert Advisor or more commonly known as a Trading
Robot. Robot Trading is a program that can trade automatically according to the
logic program of market price conditions as an example; EA makes Orders, Take
Profit, Stop Loss, Delete, and Close Orders.
Trading robots themselves are often misused to commit
crimes such as the current phenomenon, namely Fraud under the guise of trading
robots. Examples of several cases that have become a public discussion are
Fahrenheit, where the money invested by investors will automatically be managed
by robots to avoid losses. Next is the case of Sunton
Capital, which lures a fairly large profit in the range of 5% to 20% by using
trading robots. At the end of January, the Police named 6 suspects for the
alleged fraud of trading robot named Evotrade and
confiscated money worth 12.5 billion as evidence ponzi
(member get member). For their actions, they were charged with multiple
articles, namely Article 28 paragraph 1, Article 45 paragraph 1, Article 27
Paragraph 2, Article 45 Paragraph 2 of Law Number 19 of 2016 concerning
Amendments to Law Number 11 of 2008 concerning Electronic Transactions and
Information. As well as Articles 105 and 106 of the Trade Law and/or Articles
3, 4, and 5 concerning Money Laundering. And Articles 55 and 56 of the Criminal
Code.
Forex Trading is supervised by the CoFTRA
Institution which is responsible for Futures Trading activities as stated in
Law no. 10 of 2011 concerning Amendments to Law No. 32 of 1997 concerning
Commodity Futures Trading. CoFTRA as an institution
that provides protection to investors in forex trading so that losses do not
occur by persuading to promise profits, providing misleading information, not
distributing customer orders according to orders, carrying out transactions
without the knowledge or orders of customers, not explaining the risks faced by
potential customers , and not placing customer funds in separate accounts.
According to (Hadhikusuma, 1996) Law enforcement in the form of legal protection in
business economic activities, especially the capital market, cannot be
separated from the legal aspects of the company (especially limited liability
companies, because legal protection in the capital market involves capital
market players, especially issuers, investors and institutions). - supporting
institutions for capital market activities where the parties are dominated by
legal subjects in the form of legal entities in the form of limited liability companies.General protection provided by CoFTRA, customers who experience losses also receive
special protection as regulated in CHAPTER VI of the Commodity Futures Trading
Law concerning compensation fund According to Article 46 paragraph (1),
compensation fund is a fund used by the Futures Exchange to pay compensation to
customers who are not members of the Futures Exchange that arise as a result of
default (default) or the fault of the Futures Broker.
CoFTRA
explained that the activities of trading robots would be illegal if they were
used for trading activities, where all trading activities in the Commodity
Futures Trading sector must obtain a permit from CoFTRA.
The author has previously conducted a search on the writing of this research.
Based on the search that has been carried out, several studies have been found
that are related to the topic of this research. Thus, there is no element of
plagiarism in it, for consideration the following various researches that are
related to the research that the author is doing are:
1.
Journal by (Zaenudin &
Faridah, 2022) with the title: Criminal Liability Against Affiliates of Illegal Binary
Option Applications in Indonesian Criminal Law. As for the subject matter of
the problem is How is the Criminal Liability of
Illegal Binary Option Affiliates.
2.
Journal by (Ksamawantara et al.,
2021) with the title: Consumer Protection Against Fraud by Illegal Forex
Brokers. The main topic of discussion is how to protect the law in forex
transactions.
Based on the titles and issues discussed in the two
journals, it can be understood that this research has a difference, namely
focusing on the use of Trading Robot Applications in Forex Transactions against
Law no. 10 of 2011 concerning Amendments to Law No. 32 of 1997 concerning
Commodity Futures Trading, while the two journals above focus on the Criminal
Liability of Illegal Affiliates and Legal Protection for Consumers due to Fraud
by Illegal Brokers. Thus, this research does not have an element of plagiarism
in the hope that it can be useful for science education and law enforcement in
Indonesia.
Writing this scientific journal aims to understand and
analyze the use of Trading Robot Applications in Forex Transactions against the
legal rules, namely Law no. 10 of 2011 concerning Amendments to Law No. 32 of
1997 concerning Commodity Futures Trading, as well as the use of trading robot
applications in forex trading activities, on international trading exchanges,
where it is hoped that the results of this research can provide information and
knowledge. Commodity Futures applicable in Indonesia, especially the use of the
Trading Robot Application.
METHOD
Writing This
research uses a normative juridical research method, namely examining the law
from an internal perspective with the object of research being legal norms
(Diantha, 2016). In this study, there are regulations or laws that are
the subject matter associated with the phenomena that occur regarding the use
of trading robot applications. Researchers examine the problem with a statutory
approach, namely Law no. 10 of 2011 concerning Amendments to Law No. 32 of 1997
concerning Commodity Futures Trading. This type of research also uses a
statutory approach, a historical approach and a sociological approach, using
sources of legal material including: a) legislation-as primary legal material,
and b) legal rules, c) legal principles, d) doctrine, e) legal theory, f) legal
encyclopedia, g) legal dictionary and h) legal literature - as secondary legal
material (Qamar et al., 2017). Using the technique of collecting legal materials by
searching and/or studying literature. The analysis technique used is
descriptive by describing in detail the description of the subject and object
of research.
RESULTS AND DISCUSSION
1.
The Legality of Using Trading Robot Applications in Forex
Transactions Against Law no. 10 of 2011 concerning Amendments to Law No. 32 of
1997 concerning Commodity Futures Trading
One of the factors that support the economy of a country
is trade (Oktavian, 2021). Foreign exchange trading is in great demand by the wider
community, one of which is Indonesia. Foreign exchange trading is a trading
transaction in foreign currency exchange rates on the international money
market. The foreign exchange (forex) market is open 24 hours a day for 5 days a
week, Basically forex trading (foreign exchange) is done manually, so it
requires constant monitoring of price charts on the monitor screen and of
course it's a waste of time and effort as well as the psychology of the trader
itself. With the presence of a foreign exchange robot, this can be minimized.
The foreign exchange robot (Expert Advisor) that has been provided on the
MetaTrader 4 trading platform is made using the MQL (Meta Quotes Language)
programming language which is still one family with the C/C++ language. Activities
using trading robots can be categorized as ordinary actions or trading, the
difference is that the media used is Internet media using paper-based
transactions (Tektona, 2016). The use of Trading Robots in Futures Trading activities
is a manifestation of the renewal of technological systems that have evolved to
facilitate decision making in trading and overcome the weaknesses of human
nature in trading, such as fatigue, fear, greed, inconsistent / Discipline.
Keep in mind that traders themselves cannot completely rely on Expert Advisors
without understanding the methods, basics, and mechanisms of foreign exchange
trading itself. The history of the Forex Trading Robot developing was first
created from Version 1 in 1999, until now Metatrader has reached version 5
(Forex, 2022). Trading activities in Futures Trading are supervised by
an Institution called the Commodity Futures Trading Supervisory Agency as
regulated in Article 1 paragraph 3 of Law No. . 10 of 2011 concerning
Amendments to Law No. 32 of 1997 concerning Commodity Futures Trading states:
"Commodity Futures Trading Supervisory Agency,
hereinafter referred to as CoFTRA, is a government institution whose main task
is to provide guidance, regulation, development, and supervision of Futures
Trading."
The phenomenon that occurs in Indonesia is that the use
of Trading Robot Applications in Forex Transactions is carried out without
permission. Basically, trading robots are tools in foreign exchange trading and
cannot completely replace the role of humans as brokers and traders because
they do not have the flexibility to make adjustments to the development of the
situation and recent conditions such as changes in political and security
conditions. Thus, no Foreign Exchange Trading Provider (Forex) dares to give
absolute guarantees, the use of trading robot services will make an agreement
by signing a form which states that the Forex Trading Robot service provider
cannot be held responsible for the risks and losses caused by using the trading
robot application, The emergence of the use of trading robots in Trading Forex
Transactions must obtain permission from the Commodity Futures Trading Supervisory
Agency (CoFTRA) and the Financial Services Authority (OJK) for trading
activities. Law No. 10 of 2011 concerning Amendments to Law No. 32 of 1997
concerning Commodity Futures Trading. This creates a norm vacuum and creates
contradictory norms where actions that do not have permission from the
competent Supervisory Agency, namely CoFTRA and OJK, are illegal, in addition
to illegal actions in Law no. 10 of 2011 concerning Amendments to Law No. 32 of
1997 concerning Commodity Futures Trading is an act that fulfills a criminal
element so that it can be held accountable as stipulated in article 71:
1) Any
Party conducting Futures Trading activities without having a business license
as referred to in Article 14 paragraph (1), Article 25 paragraph (2), Article
31 paragraph (1), Article 34 paragraph (1), or Article 39 paragraph (1), shall
be punished with imprisonment for a minimum of 5 (five) years and a maximum of
10 (ten) years, and a fine of a minimum of Rp.10,000,000,000.00 (ten billion
rupiah) and a maximum of Rp.20,000,000,000.00 (twenty billion rupiah).
2) Any
Party that carries out activities without having the requirements, approvals,
or stipulations as referred to in Article 13, Article 14 paragraph (2), Article
14 paragraph (3), Article 30A paragraph (1), Article 30A paragraph (2), Article
32, or Article 36 paragraph (2) shall be punished with imprisonment for a
minimum of 5 (five) years and a maximum of 10 (ten) years, and a fine of at
least Rp. 10,000,000,000.00 (ten billion rupiah) and
a maximum of Rp. 20,000,000. 0000.00 (twenty billion
rupiah).
3) Any
Party that carries out activities without having a permit as referred to in
Article 31 paragraph (3), Article 34 paragraph (3), or Article 39 paragraph (3)
or without having a registration certificate as referred to in Article 35A
paragraph (1) shall be subject to imprisonment a minimum of 1 (one) year and a
maximum of 3 (three) years, and/or a fine of at least Rp.
500,000,000.00 (five hundred million rupiah) and a maximum of Rp. 1,500,000,000.00 (one billion five hundred million
rupiah).
From
the explanation of the article above, it can be interpreted that carrying out
trading activities which include the use of robot applications without having a
business license is an act that is against the law so that it can be subject to
criminal sanctions, if it is associated with a license to use a trading robot
that has never been regulated in Law No. 10 of 2011 Regarding Amendments to Law
No. 32 of 1997 concerning Commodity Futures Trading, clearly proves
imperfections in a rule in regulating futures trading activities so that it is
easier for someone to be subject to sanctions just because unregulated permits
cause no clear legality. The laws and regulations that are formed should
reflect the existence of legal certainty and regulate explicitly and
specifically the substance that is the scope of the law (Ariawan, 2018).
Law
without the value of certainty will lose its meaning because it cannot be used
as a behavioral guide for everyone (Kansil, 2009). It has a negative
impact on law enforcement, namely ineffective law enforcement, the emergence of
legal uncertainty, the occurrence of legal dysfunction and disorder and a sense
of being unprotected by the community. the law can
function in providing behavioral guidelines to the community, being a social
controller, resolving disputes, and as a means of carrying out social change.
The dysfunction of statutory regulations can be overcome in several ways, such
as adding, changing, and filling in rules that have a void of norms with the
process of forming laws that must comply with the principles, and harmonizing
at the time of drafting laws and regulations. Thus, the use of trading robots
in trading activities must be immediately regulated in clear regulations in
line with Law no. 10 of 2011 concerning Amendments to Law No. 32 of 1997
concerning Commodity Futures Trading.
2.
Regulating
the use of the Trading Robot application in Indonesia from the perspective of
the Ius Constituendum
The
implementation of legal norms in society is formed as a result of the rule of
law which results in requiring the rule of law to provide justice and security
for every human being. Satjipto Rahardjo
argues that every process of drafting legal rules should be able to provide the
role that legal principles have. In fact, legal principles can provide a
direction in the future is a problem. So when the law or legislation is
developed, the legal principle provides guidance on how and in which direction
the system is developed (Rahardjo, 2003). The principle of
legal certainty has an important role in the concept of updating the rules for
the use of trading robots. The current phenomenon of using trading robots is
actually inseparable from the background of some parties who still think legally.
While it is known that the preparation of Law no. 10 of 2011 concerning
Amendments to Law No. 32/1997 concerning Commodity Futures Trading. 10 of 2011
concerning Amendments to Law No. 32 of 1997 concerning Commodity Futures
Trading has not regulated the use of trading robot applications and has
responded to technological developments to be utilized.
An
Urgency for the Government and related Agencies to evaluate and reform the Law
no. 10 of 2011 concerning Amendments to Law No. 32 of 1997 concerning Commodity
Futures Trading, which is oriented to the use of technology and is responsive
to traffic using trading robots.
The
urgency of legal reform policies based on technological progress is based on
several considerations, namely political reasons that are associated with the
logical consequences of technological advances that need to be harmonized with
legal requirements in Futures Trading activities which require clear legal
norms regarding the negative impact of using trading robots that are misused as
a crime. , as well as the existence of protection for certain parties due to
the use of the trading robot application. 10 of 2011 concerning Amendments to
Law No. 32 of 1997 concerning Commodity Futures Trading which continues to
develop and improve itself until it finds the most ideal concept (Kristiana, 2016), while the second is
a sociological reason that is ideological in nature in terms of using
technology as a legal reform to provide convenience for the community as well
as efforts to fulfill community needs, especially in Futures Trading.
Technology
is believed to be a tool that serves to speed up services and overcome
obstacles, as well as to guarantee transparent practices (Greacen, 2019). All aspects of life
must be based on the product of laws and regulations, sometimes introducing new
types of violations and sometimes with new sanctions in them. In addition, the
law often requires the establishment of new administrative bodies. The legal
conception, interpretation, and expansion of new legal fields also emerged
through the creation of these new norms. The regulatory state acts as the
subject of regulation (regulator) and interacts with independent social actors
as the object of its regulation. Administratively, governance requires that
events, processes, and activities be controlled through means of command and
control (Schneider, 2002).
Regarding
criminal sanctions regulated in Article 71 of Law, it should prioritize
administrative order so that the sanctions given are no longer to provide a
deterrent effect and a retaliation but instead lead to the protection of
society by considering the interests of the state, perpetrators, victims.
According to (Sholehuddin, 2003), includes three (3)
elements namely:
a. Humanity
whose principle is punishment must uphold the dignity of a person
b. Educational
that can make people aware of all actions so that there is a desire to change
and be constructive for crime prevention efforts
c. Justice
that is felt by each party that has a correlation.
That
actions that do not have a permit are illegal and violate the law. Illegal does
not mean an act can have a bad impact as a crime, Illegal in the sense of not
having a permit is more suitable to be considered a violation because the
permit is related to administrative law so that the purpose of the sanctions
stipulated in Article 71 of the Law is to bring order. are
in the form of imprisonment, fines, and additional penalties such as revocation
of certain rights, confiscation of certain goods. As for Criminal Sanctions in
the Criminal Code (KUHP) Article 10, namely:
Criminal
Consists of:
a. Basic
Criminal
1) Death
Penalty
2) Imprisonment
3) Confinement
4) Criminal
Fines
5) Criminal
Cover
b. Additional
Criminal
1) Revocation
of Certain Rights
2) Confiscation
of Certain Items
3) Announcement
of Judge's Decision.
The
use of a trading robot application is a tool with technological sophistication
in forex trading activities which requires definite regulations so that they
are not misused to commit crimes and convenience and protection for trading
robot users themselves, so there are several aspects that must be used as
guidelines for making trading robot rules, include:
a. Trading
robots must be used on brokers who have fulfilled the permission from the
Agency that regulates and Supervises Trading activities, namely CoFTRA and issued an Online Licensing policy by CoFTRA based on technology.
b. There
needs to be certain specifications and qualifications on trading robots such as
algorithm transparency, variables can be inputted according to the user's
wishes because a man-made system or application cannot be separated from human
intervention where there is a risk from the trading robot application itself.
c. Making
trading robot provider criteria such as legality from CoFTRA
such as having to provide trading system education, providing periodic
algorithm updates
d. The
establishment of a special forum that oversees trading activities in Indonesia.
Especially for traders to have legality.
e. The
concept of being illegal or not having a permit is not a crime but an act of
violation for those who have a correlation with trading robot activities so
that the criminal sanctions given not only promote a deterrent effect but also
administrative order according to Law no. 10 of 2011 concerning Amendments to
Law No. 32 of 1997 concerning Commodity Futures Trading in the form of criminal
sanctions in confinement, fines, and added with additional penalties, namely
revocation of rights, confiscation of goods.
CONCLUSION
The use of Trading Applications in Forex
Trading activities is something that has not been regulated in Law no. 10 of
2011 concerning Amendments to Law No. 32 of 1997 concerning Commodity Futures
Trading. Considering that all Futures Trading trading
activities must obtain a permit from CoFTRA, acts
that do not have a permit are illegal and may be subject to criminal sanctions
as stipulated in Article 71 of Law no. 10 of 2011 concerning Amendments to Law
No. 32 of 1997 concerning Commodity Futures Trading, there is a void in legal
norms that can cause legislation, especially in Futures Trading activities to
have a negative impact on law enforcement, the emergence of legal uncertainty,
the occurrence of legal dysfunction and disorder and a sense of unprotected
society regarding the use of trading robot applications in Forex transactions.
Thus, there is a need for legal reform so that a rule in futures trading
activities can be harmonized with technological advances in an effort to ensure
legal certainty, justice, transparency, and accountability of public services
related to global economic development, especially trading activities can be
carried out more regularly, effectively and efficiently.
REFERENCES
Ariawan, P. B. (2018). Kepastian Hukum Wilayah Jabatan
Notaris Sebagai Pemegang Protokol Notaris Yang Berakhir Masa Jabatannya. Jurnal
Hukum Kenotariatan. Magister Kenotariatan Universitas Udayana. Bali, 3(2),
326�335. https://doi.org/10.24843/AC.2018.v03.i02.p09.
Diantha, I. M. P. (2016). Metodologi penelitian hukum
normatif dalam justifikasi teori hukum. Jakarta: Prenada Media.
Forex, S. (2022).
Sejarah Robot Trading Forex EA.
Seputarforex.Com.
Greacen, J. M. (2019). Eighteen ways courts should use
technology to better serve their customers. Family Court Review, 57(4),
515�538. https://doi.org/10.1111/fcre.12446.
Hadhikusuma, R. T. (1996). Pengertian pokok hukum
perusahaan: bentuk-bentuk perusahaan yang berlaku di Indonesia. Jakarta:
Raja Grafindo Persada.
Hutabarat, L. H. (2010). Analisa Manajemen Resiko Dan
Strategi Investasi Pada Forex Online Trading Dan Pengaruhnya Terhadap Value
Added Investor di PT. Monex Investindo Futures. DiE: Jurnal Ilmu Ekonomi Dan
Manajemen, 6(2), 39�64. https://doi.org/10.30996/die.v6i2.123.
Kansil, C. S. T. (2009). Kamus Istilah Hukum. In Jakarta:
Gramedia Pustaka. Jakarta: Gramedia Pustaka.
Kristiana, Y. (2016). Pemberantasan tindak pidana korupsi:
perspektif hukum progresif. Yogyakarta: Thafamedia.
Ksamawantara, I. M. A., Kosasih, J. I., & Widyantara, I.
M. M. (2021). Perlindungan Konsumen Terhadap Penipuan yang dilakukan Broker
Forex Ilegal. Jurnal Interpretasi Hukum, 2(2), 281�286.
https://doi.org/10.22225/juinhum.2.2.3426.281-286.
Oktavian, E. (2021). Sistem Preferensi umum dan
prinsip-prinsip hukum perdagangan Internasional Relevan. Jurnal Poros Hukum
Padjadjaran, 3(1), 37�49. https://doi.org/10.23920/jphp.v3i1.614.
Qamar, N., Syarif, M., Busthami, D. S., Hidjaz, M. K.,
Aswari, A., Djanggih, H., & Rezah, F. S. (2017). Metode Penelitian Hukum
(Legal Research Methods). Jakarta: CV. Social Politic Genius (SIGn).
Rahardjo, S. (2003). Sisi-sisi lain dari Hukum di
Indonesia. Jakarta: Penerbit Buku Kompas.
Schneider, V. (2002). Regulatory governance and the modern
organizational state: The place of regulation in contemporary state theory. European
Consortium for Political Research (ECPR). Workshop on The Politics of
Regulation, Universitat Pompeu Fabra, Barcelona, 29�30.
Sholehuddin, M. (2003). Sistem sanksi dalam hukum pidana:
Ide dasar double track system & implementasinya. Jakarta: Raja grafindo
persada.
Tektona, R. I. (2016). Perlindungan Konsumen dalam Kontrak
Transaksi E-Commerce Berdasarkan Hukum Perdagangan Internasional. Jurnal
Supremasi, 6(2), 13�26. https://doi.org/10.35457/supremasi.v6i2.391.
Zaenudin, F. R., & Faridah, H. (2022). Pertanggungjawaban
Pidana Terhadap Afiliator Aplikasi Opsi Biner Ilegal dalam Hukum Pidana
Indonesia. Jurnal Hukum Sasana, 8(1), 163�174. https://doi.org/10.31599/sasana.v8i1.1066.
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Received:
29-06-2022�������������������� ��������������� Accepted: 06-07-2022���������������������� ��������������� Published: 23-07-2022������ 