I. BACKGROUND
A bank is a financial institution that functions in fund collection (funding), fund distribution (lending), and other financial service operations. Essentially, there are several types of banks such as the central bank, commercial banks, Islamic banks, and rural credit banks.
Every bank has Standard Operating Procedures (SOPs) as a preventive measure to reduce mistakes made by its employees. These SOPs help limit errors that can be directly attributed to the bank and are aimed at implementing the principle of prudent banking. This principle mandates that banks must operate cautiously to protect customer interests, as stated in Article 2 of Law Number 10 of 1998 concerning the Amendment to Law Number 7 of 1992 on Banking, Financial Services Authority Regulation Number 9/POJK.03/2016 regarding the prudential principles of banks and Article 20A Law Number 3 of 2023 on P2SK. Banks are often held accountable for negligence committed by their employees. This negligence usually arises from the personal failure of the employee to apply prudential principles, which in turn causes customer losses.
The concept of unlawful acts in civil law differs from that in criminal law, primarily because civil law is of a private nature. Unlawful acts are regulated in the Indonesian Civil Code (KUHPerdata), specifically in Articles 1365 to 1367. Article 1367 addresses vicarious liability, which means a person is not only responsible for their own unlawful acts but also jointly liable for unlawful acts committed by others under their orders or authority.
The provisions of Article 1367 of the Civil Code are often considered vague, which sometimes results in individuals bearing responsibility for acts they could not have prevented.
II. CRITERIA FOR HOLDING A BANK ACCOUNTABLE FOR UNLAWFUL ACTS COMMITTED BY EMPLOYEES
Banks are frequently held liable for customer losses caused by their employees’ unlawful acts. Judges often apply the principle of vicarious liability as the basis to hold both the bank and the employee jointly responsible.
Vicarious liability is a principle commonly used when there is fault by both the employer and the employee. In such cases, the employer can be held accountable for the employee’s unlawful acts, as stipulated in Article 1367 paragraph (3) of the Civil Code.
A bank can be held accountable if the employment relationship between the bank and the employee is based on Law No. 13/2003, which defines employment relationships as a bond between employer and worker that includes elements of wages and directives. This relationship must be reciprocal. However, the second criterion — that wages must be proportional to the job responsibilities — must also be met.
The elements mentioned above must be proven cumulatively in order to apply vicarious liability. However, with the existence of SOPs, a bank can avoid liability for unlawful acts committed by its employees.
According to Article 1367 paragraph (4), the responsibility for unlawful acts committed by a person under someone else’s authority can be lifted in certain circumstances. For example, the employer — in this case, the bank — may demonstrate that the wrongdoing could not have been prevented and that preventive steps had already been taken.
III. CONCLUSION
Based on the above discussion, it can be concluded that banks are fundamentally not liable for negligence or unlawful acts not committed by themselves, as long as they apply the principle of prudence as regulated by law. However, banks may still be held liable if they cannot prove that they have taken preventive measures and fulfilled the elements necessary to apply the principle of vicarious liability.