LEGAL PROTECTION FOR THE LOSS OF THE PASSENGER OF ONLINE TRANSPORTATION

Online transportation shall provide a security, comfort and safety guarantee for service users, however it is not performed in the application. Service users still have not guaranteed their rights as consumers. In the case the consumer suffers a loss, it is remain undetermined how compensation may be granted, therefore it demands an equal legal protection. Facing this condition, Law Number 8 of 1999 on The Consumer Protection has not yet stipulated slear provision regarding this matter, likewise the online transportation service users and service providers are only bound in limited aspects. The research method of this reasearch is normative legal research only focusing on the issues raised, discussed and elaborated with applying the rules or norms in positive law, using Statutory Approaches and Conceptual Approaches, with primary and secondary legal materials. The data collection technique used is literature study. The analysis technique used is the deductive method. The results showed that there was an legal relationship between service users and online transportation service providers. Consumers have the right to get protection in the form of responsibility for information, legal responsibility for services provided and responsibility for security and comfort. However, for the losses suffered, legal protection for losses incurred by passengers in online transportation mode is still poor due to lack of regulations and the undetermined standard regulations specifically in regulating online transportation modes.


I. INTRODUCTION
The rapid development of digital industry is motivated by internet connectivity on every object, especially in industrial machines which no longer can be avoided. This digital industry is supported by culture of Indonesian people which is based on the Ministry of Communication and Information data in 2017, the citizen has been very actively interacting in online media (Qur'ani Dewi Kusumawardani, 2019: 12). E-commerce seems to be an integrated part of the lifestyle of the Indonesian people nowoday. E-commerce has the main potential in terms of transactions effectiveness which provide profit for both buyers and sellers. That is because (P. Ashokkumar, 2018: 73): 1. Availability of goods and services for 24 hours a day without being closed. 2. Instant updates of catalogs and prices at any time thereby saving paper and printing costs. 3. Broad visibility: Small companies can now advertise globally with minimal costs. 4. Creating the virtual community as an ideal target market to increase sales. 5. Interesting choices for people with disabilities.
Online business is also growing rapidly, one of which is online transportation. This business is the development of e-commerce in the field of land transportation with its transportation transactions using electronic media. There are many choices of online transportation mode such as Go-Jek, Grab, Anterin, Transjek, Wheel Line, Bangjek, Blue-Jek, Ojek Syar'i, Ngantor, and others. Among those online transportation service providers, only 2 (two) of them are popular, that are Go-Jek and Grab. The growth of the online transportation business is followed by the increasing public interest, which showed by the continued increase of application downloaders number. Massive news which perform the story of online transportation driver whose helped to make better living gives hope to the others (Kukuh Tejomurti, 2018: 462), which motivate sigificant number of peoples also register to join working in the field as well.
The appearnace of online transportation companies is not without problems. At the beginning, it has raised conflict with conventional transportation which became the first obstacle. The development of online transportation mode has led to a deceasing number of the public and conventional transportation income. Protests carried out by conventional transportation drivers, gave concequence to ban online-based transportation operation for online transportation companies through the Decree of the Minister of Transportation Number UM.302/1/21/Phb/2015 because they were considered not in accordance with Law Number 22 of 2009 on The Road Traffic and Transportation. However, Law Number 22 of 2009 does not clearly stipulate that motorbikes are public motor vehicles, but there is also no prohibition in the Law which mention any use of motorbikes as public motor vehicles. In Article 137 paragraph (2), "Passenger trasnportation using the motorized Vehicle shall be in terms of Motor Cycle, Passenger Car or bus." In Government Regulation Number 74 of 2014 on The Road Transportation is also not clearly stated the use of motorbikes as general vehicles to transport people. Article 10 paragraph (4) of Government Regulation Number 74 of 2014 on The Road Transportation only explains the technical aspects of motorbikes as transporting goods. Therefore, there are no rules that clearly regulate the existence of transportation, especially in the online-based which considered to violate the regulation of public transportation. Later, the Ministerial Decree was revoked

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because the President stated that transportation tools based on online applications were still needed by the people (Endang Wahyusetyawati, 2017: 4). Other problems arise include, the legality of online transportation mode, especially motorbikes that are used as public transportation, the poor legal protection for passengers because they are bound to the agreed standard agreements. Therefore, in the event there is a loss to the passenger in the form of a crime, accident and loss/damage to luggage, the public demands clear legal protection. Cases of online-transportation driver accidents that result in injury or death of passengers can also occur, (https://sumselupdate.com/ kecelakaan-di-jalan-demang-palembang-pengemudi-dan-penumpang-ojek-onlinemengalami-luka-luka/, accessed on 30 June 2019) likewise the loss of passenger goods due to the negligence of the driver or human error (https://www.tribunnews.com/ regional/2019/06/28/driver-ojek-online-terpental ditabrak-mobil-xpander-dompetpenumpang-hilang-begini-kondisinya, accessed on 15 July 2019). Such conditions only leave a relationship between the passenger and the driver, while the provider of the application platform remains free of sanctions. (https://www.merdeka.com/ peristiwa/kecelakaan-hingga-penumpang-luka-driver-ojek online-divonis-dua-bulan-10-hari.html, accessed on 28 July 2019). Based on the foregoing discussion, the author will discuss legal protection against losses incurred by passengers in online transportation mode.

II. RESEARCH METHODS
This type of research is normative legal research in prescriptive. This research is intended to examine the coherence between legal norms and legal principles, between Law and legal norms, as well as the coherence between individual behavior and legal norms (Peter Mahmud Marzuki, 2014: 41-42). Whereas the approach used is the Statute Approach and Conceptual Approach (Peter Mahmud Marzuki, 2014: 136). The legal materials that used are primary legal material, namely the Civil

III. RESEARCH RESULTS AND DISCUSSION
Go-Jek and Grab are trademarks of a technology-based company that provides applications in the form of platforms to bring service users and service providers in the transportation of goods or people. A legal relationship is a relationship between two or more legal subjects. In this legal relationship, the rights and obligations of one party are dealing with the rights and obligations of another party (Soeroso, 2011: 269). There is a triangular relationship between the platform provider (example: Gojek and Grab), the driver and the passenger. Passengers and drivers use applications with different means but complementary to each other. Passengers get services as consumers, while drivers provide services. The relationship between the two is facilitated by the application service provider. While the relationship between the driver and the application service provider is a partnership relationship based on a standard agreement with the application provider which provides a standard contract. Drivers are faced by the choice of take it or leave it, as well as passengers.
Prospective users who will use Go-Jek/Grab must go through an online application which applications for mobile users with iOS and Android operating systems may access (Andika Wijaya, 2016: 1). On the highway, the relationship is dominated by passengers and drivers, while the application service provider (Go-Jek/Grab) is only an intermediary tool. Therefore, in the event there is a loss, the causality relationship is more common between the passenger and the driver (Kukuh Tejomurti, 2017: 63-64). If reviewed from the civil aspect, the legal position of online transportation companies can almost be compared to the legal position of a commissioner (intermediary) because the function of online transportation companies (Go-Jek/Grab) in transaction activities is as an intermediary to bring together service providers (transporters) and service users. However in the application, an agreement between an online transportation company (Go-Jek/Grab) and a driver is a partnership agreement with a standard type of agreement that is not an agreement authorizing accompanied by a commission.
Accidents on passengers caused by driver mistakes usually occur because the driver is speeding, exhausted and does not obey traffic signs. Therefore, the accident is a considered Act Against the Law with real losses that have been suffered (material) and the benefits to be gained in the future (Immaterial). So as, if Article 1365 of the Civil Code occurs, "A party who commits an illegal act which causes damage to another party shall be obliged to compensate therefor". Article 1367 paragraph 1 of the Civil Code states that, "An individual shall be responsible for the damage which he has caused by his own act, as well as for that which was caused by the acts of the individuals for whom he is responsible, or caused by matters which are under his supervision." According to Philipus M. Hadjon, legal protection is a collection of regulation or rules that enable protection one thing from another. With regard to consumers, the law provides protection of the customer's rights from something that results in the fulfillment of those rights. Even though the internet is a virtual world, legal protection is still needed to regulate people's actions because, first, people who are in cyberspace are people who are in the real world. The community also has values and interests both individually and collectively which must be protected by law. Second, transactions that occur in cyberspace are also transactions conducted by the public and have an influence in the real world, both economically and non-economically (Qur'ani Dewi Kusumawardani, 2019: 18).
The purpose of law in general, among others, is to create justice, security, order and to enforce the law consistently without discrimination (Abdulkadir Muhammad, 2010: 2). If these goals have not been achieved, it can be interpreted that the existing legislation has not been able to provide legal protection, which in this research will concern the losses suffered by passengers for online transportation modes, both using cars (online cars) and motorbikes (online motorcycle taxi) ). This happened due to the lack of law and regulations described as follows:

A. LLAJ Law
Article 47 of the LLAJ Law regulates the type and function of vehicles. It was used as a determinant of what vehicles are considered to capable in providing security and safety in accordance with the Minimum Service Standard which include: security, safety, comfort, affordability, equality and order (Article 141 of the LLAJ Law). Article 47 of the LLAJ Law states that,  Another weakness of the LLAJ Law relates to the partnership relationship between drivers and application companies as Article 15 of the Minister of Transportation Regulation Number 12 of 2019 on The Safety Protection of Motorcycle Users for Public Interest Application company statuses such as Go-Jek (Aplikasi Karya Anak Bangsa, Co, Ltd) and Grab (Solusi Transportasi Indonesia, Co, Ltd) are registered with the AHU Directorate General as Electronic System Providers (PSE) or application companies (plattform) not as public transportation companies. Therefore, the LLAJ Law does not have authority over the application company in the event of a loss to the passenger because the responsibility is limited to the implementation of the application (Kukuh Tejomurti, 2017: 114). Even though the driver is the person who directly carries out and is responsible for the person and/or the goods he is transporting, but in the recruitment process, it is done by the application company rather than the transportation department authority. In that case, the purpose of transportation for law enforcement and legal certainty for the community has not been maximumly reached.

B. UUPK Law
To minimize losses arising from e-commerce, the UUPK provides legal certainty by providing clear limits on the rights and obligations of consumers and business actors. Consumer rights and obligations are regulated in Articles 4 and 5 of the UUPK, while the rights and obligations of business actors are regulated in Articles 6 and 7 of the UUPK. The fulfillment of the rights and obligations by the parties is guaranteed by the government as a form of fostering the implementation of consumer protection as regulated in Article 29 Paragraph 1 of the UUPK.
Due care theory explains that consumers and producers are in a position not aligned/balanced because the company has knowledge and expertise that is not owned by consumers so the company has strong and profitable position (Zulham, 2013: 65-80). In addition, the ease of offering and accepting of a product which sold through e-commerce makes unscrupulous persons using this e-commerce facility in trading their products which do not meet the requirements for trading in Indonesia (Deky Priadi, 2018: 660). This may occur because of the lack of clarity in the existing rules that make the driver's position weak when dealing with companies such as Gojek and Grab (Luthvi Febryka Nola, 2018: 1).
Ordering online transportation services such as Grab and Go-Jek through the electronic agreement is conducted by a clickwrap agreement, in which the consumer must agree to the conditions stated in the contract by clicking on the sign of agreement before completing the transaction (Paustinus Siburian, 2004: 66-68). Problems occur when consumers have a low level of awareness and understanding of their rights, this correlates with the consumer's education. Indonesian consumers in terms of e-commerce tend to agree without reading and understand the contents of the terms and conditions that contain standard clauses because they feel they have obtained the goods and/or services they need. Therefore the company is obliged to guarantee the interests of consumers so as not to be harmed.
When referring to the partnership contract between the Go-Jek company, which is a merger of Paket Global Semesta, Co, Ltd., Aplikasi Karya Anak Bangsa, Co, Ltd and Dompet Anak Bangsa, Co, Ltd and Driver (partners) there are clauses related to the relinquishment of responsibility which reads: "Partners hereby acquit PGS (Go-Jek company) from all kinds of claims, lawsuits, or other legal actions, both in a civil lawsuit and any criminal lawsuits experienced by the Partner, in any form related to the services offered, provided, held or completed by the Partner through the Application through a partnership under this Agreement." Based on this clause, Paket Global Semesta, Co, Ltd (Go-Jek company) relinquishes all responsibility caused by the driver (partner). If reviewed from the UUPK, the legal position of the driver of Go-Jek is not as a consumer (because the relationship is a partnership). Whereas the position of Paket Global Semesta, Co, Ltd as a business actor relinquishes itself from the obligation of compensation claims by the transportion service user. New regulation governing the legal position of application provider companies (platforms), partners (transporters), as well as application service users in traffic protection laws for consumers to limit contracts that are arranged based on the principle of freedom of contract is needed.
A standard contract is an agreement that bound the parties that sign it, although there are many transfers of liability from the contract designer to the recipient of the contract. However, any losses that arise in the future will still be borne by parties who must be held accountable based on the clause of the agreement, except if the clause is contrary to the prohibited clause under Article 18 of the UUPK, among others (Ahmadi Miru, 2016: 45): a. Transfer of responsibility; b. Regulates the verification of the benefits loss of services purchased by consumers; c. Gives the right to businesses actor to reduce the benefits of services or consumer property; d. States consumers are subject to new rules; e. Placing a standard clause that is difficult to see; These restrictions indicate the government's seriousness to protect consumers from ignorance and powerlessness in obtaining goods and/or services through standard clauses.
UUPK is still weak against e-commerce consumer protection because in e-commerce, if an agreement that contains a standard clause is agreed to, the consumer is bound by a 'contract'. The principle of freedom of contract stipulated in Article 1338 paragraph (1) of the Civil Code explains that, "All legally executed agreements shall bind the individuals who have concluded them by law". The article also contains the principle of pacta sunt servanda which means the agreement is legal for its maker and must be obeyed as a law. But then Article 1338 is limited by the provisions of Article 1339 of the Civil Code, " Agreements shall bind the parties not only to that which is expressly stipulated, but also to that which, pursuant to the nature of the agreements, shall be imposed by propriety, customs, or the law ".
The electronic agreement on Grab and Go-Jek is indeed valid because of the principle of freedom of contract but must pay attention to propriety and existing 228 laws. In fact, this electronic agreement violates the UUPK with its exoneration clause which is detrimental to consumers, but the lack of firmness regarding the violation makes this electronic agreement a reference for implementing online transportation mode.
In addition, the UUPK cannot reach businesses outside the national jurisdiction of the Republic of Indonesia. This condition causes the UUPK cannot fully apply to e-commerce transactions carried out by parties domiciled in different legal jurisdictions (Iman Sjahputra, 2010: 2). Fortunately in this case, Go-Jek and Grab are domiciled in Indonesia which makes them bound to the UUPK.
Apart from being a online transportation company, the Go-Jek company is also a fintech company within the scope of fintech payment companies through Go-Pay. Financial Services Authorirty has issued regulations relating to consumer protection in the financial services sector namely the Financial Services Authority Both the UUPK Law and the Financial Services Authority Regulation on The Financial Consumer Protection actually regulate consumer protection in conventional transactions. In case there are still loopholes to occur for things that harm consumers of e-commerce, especially in terms of supervision. According to Deky Priadi (2018: 658), the implementation of e-commerce transactions must be balanced with the existence of strict supervision in every implementation.
Supervision (Article 30 of the Company Law) is more heavily borne by the role of the community and the Non-Governmental Consumer Protection Institute (LPKSM) compared to the role of the government which is carried out by the relevant minister and/or technical minister. Then Article 30 paragraph (4) of the UUPK above explains the passivity of the government in terms of direct supervision because the government relies on the existence of community reports and/or LPKSM to then take action.

C. Labor Law
Many people assume that online drivers have a working relationship with the application provider company. The reasons are vary, ranging from the selection of joining as a driver which is similiar to the selection of prospective employees, the requirement of the driver to 'pledge' certain certficate such as Diploma Certificate until the issue of "wages" or insurance for the drivers. Employement relations are legal relationships that occur between employers and work recipients. The employement relations may occur due to running a job and/or running a company (Abdul R. Saliman 2015: 84-86). In Article 50 of the Labor Law stipulated that Employment relation exists because of the existence of a work agreement between the entrepreneur and the worker/ labourer. According to Article 1 Number 14 of the Labor Law, an (individual) work agreement shall be defined as an agreement made between a worker/ labourer and an entrepreneur or an employer. Further, according to Article 1 Number 15 of the Labor Law The factors that determine the existence of an employment relationship are the job that the worker has to do, the worker's wage, orders and instructions.
This work agreement does not create employment, outsourcing or agency relations between each of them. Partners have the same position in partnership theory unlike subordinates with superiors or workers with employers. However, in reality, the relationship is not an employment relation but a partnership relation. The application provider refuses to mention that certain amount of money given to the driver as wage, but only partnership services which based on a partnership agreement. The implication of the legal relationship that arises between service providers and online drivers from the Perspective of the Labor Law is that no employment agreement arises in a partnership relation. Whereas, the real subordination relationship does exist. Such issues are difficult to disprove in terms of labor law, due to weak regulation. The Labor Law has in fact defined employment relations as relations between employers and workers/laborers based on work agreements, which have the elements of work, wages, and orders. But the Elucidation section of the Labor Law does not explain further and in detail the elements of the relation. So that the harshest interpretation is the most correct one. The Labor Law is weak in regulating online transportation mode due to the strictly relation between the Application Provider Company and the Driver which categorized partnership relation (Article 15 of Transportation Ministry Regulation Number 12 of 2019).

D. The Electronic Information and Transaction Law
Providers of online application-based public transportation are electronic system providers as a liaison between drivers and service users, which are also the main part of the online application-based public transportation, as the key role in the success of the systems. The clickwrap agreement system on applications such as GoJek and Grab in their services has fulfilled and has applied the theory of supply and demand as the basis for the momentum agreement establishment, as stipulated in Article 20 of the Electronic Information and Transaction Law. The ITE Law has been sufficent in the performing the application of electronic transactions conduct. However, the Electronic Information and Transaction Law has not provided details regarding the legal relations arising from online transportation to passengers with all possible losses.

A. Conclusion
Legal protection for the losses incurred by passengers in online transportation mode is considered poor due to weak and lack of regulations such as: 1. LLAJ Law 1) Article 47 (3) of LLAJ Law, implicitly concludes that motorbikes are not public motor vehicles, even though Transportation Ministry Regulation Number 12 of 2019 has existed but the provisions only cover the technical implementation; 2) Driver verification is carried out by application company instead of the government (transportation agency); 3) Application companies are not public transportation companies make their responsibilities are limited to the Electronic System Provider rather than the transportation; 2. UUPK 1) UUPK only applies in Indonesia and still regulates e-commerce commerce in detail; 2) Lack of fosterization and supervision (Article 30 of the UUPK) on the implementation of consumer protection, especially in the standard (electronic) agreement with its exoneration clause;