Johnny Ibrahim (2024) Implikasi Pengaturan Larangan Praktik Monopoli dan Persaingan Usaha Tidak Sehat di Indonesia (Analisis Yuridis dan Socio-Legal). Disertasi thesis, UNIVERSITAS AIRLANGGA.

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Abstract

Monopoly practices has been taking place constantly for a long time in n "CO during the period of 20 March 1602 up to 5 September 2000 namely since the Dutch government granted a monopoly right to the V.O.C. for trading in Indonesia (The East Indies) until Law Nr- 5 of 1999 on Monopoly and Unfair Business Competition Prohibition (State Gazette 1999 NT. 33) come into force, as stated in arts 53 and 52(2), Thus, monopoly practices and unfair business competition has been rooted deeply in Indonesian economy for nearly 400 years, With regards of the enforcement of Law Nr. 5 of 1999, there should be an understanding to the concept of economic analysis of law, and of free market concept which originally constructed on the basis of utilitarianism with its some limitations, In the concept of welfare state, the government intervention in term of public policy could be justified as long as such intervention performed as a mean to maintain the pure market, to reduce negative consequences of market failure, as well as to create justice, social order and legal certainty for market actors. Therefore, the role played by the state in such condition was to ensure that the market mechanism process could run naturally and smoothly. This, in tum, would lead to an interaction between supply and demand forces in the market that took place in safe and stable fashion, Restraint of trade was a behavioral manifestation of business actors who performed monopoly practices and unfair business competition to obtain above normal profit Forms of these restraints were horizontal restraints, including price fixing agreement,-market allocation, production control, boycott or refusal to deal, interlocking directorate; meanwhile vertical restraints included distribution limitation to a certain party only (exclusive dealing), resale price maintenance, area and consumer limitation, supplier limitation through product purchase agreement of producer (tie-in). In the case of merger, although there were many benefits obtained from merger execution, but merger measure must be controlled and regulated. This was due to in certain conditions, such as horizontal merger, it can result some constraint to a fair competition, Business behaviours that can creates restraint of trade must be prohibited through competition laws as reflected in the positive law of some countries, Restraint of trade doctrine was a result of normative thinking in jurisprudence that became a fundamental framework for prohibition of monopoly practice and unfair business competition, This doctrine has come out long time before economics emerged and being able to provide an empirical explanation on negative effects of monopoly practice and unfair business competition. Legal protection creates workable competition at the same time justice and fairness principle as a basis for competition, exerted a positive impact on market mechanism process in efficient terms. Law Nr. 5 of 1999 basically has regulated the essential principle of fair business competition as performed by some countries to be studied, and conformed to what has been suggested in Model Law On Competition issued by UNCTAD- However, the law still contained some elementary drawback either from technical legislations point of view and some exclusionary considerations, thus it was recommended to amend articles concerned. It is also suggested, in order to create a sound and conducive environment for the fair business competition, the enforcement of industrial policy and other related law such as Law Nr- 22 of 1999 should be in harmony and benefited Law Nr. 5 of 1999. Consequently, Indonesian business community will be accustomed to fair competition atmosphere, which will guide to enter a mega competition in global market. Prohibition of the monopoly and unfair business competition can be accepted both in socialist and capitalist economic systems. However, in associated with public policy making in economic sector, economic legislation that was made on the basis of capitalist principles providing an emphasis on individual interests and legislations that was constructed upon the market-based socialism principles to be focused on collectivism, both the above systems have quite different economic concepts. These discrepancies, if not to be overcome as necessarily, will increase and sharpening distinct interpretation on legislations concerned. This situation does not create legal certainty but instead generates legal uncertainty, especially in economic law. Therefore, amendment of Article 33 of The Constitution of 1945 to reaffirmed the economic system and the principle of economic democration, becomes very urgent either to recover our economy and as an answer to the challenge from global economy within free market paradigm.

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