A comparison study of strict liability principles implementation for the product liability within Indonesian consumer protection law between Indonesia and United States of America law

Abstract In Indonesia, Consumer Protection Law is based on the principles that apply both for the consumer and the producer. Our study finds that even though there are big opportunities for the change of liability based on fault principle into strict liability, the obstacles are found to be prominent. Furthermore, this finding suggests that even though Indonesia has started to adopt strict liability principles within its consumer protection laws, it has a slight interpretation bias within its law practice especially in law enforcement system. This can be inferred with the facts that “reversal burden of proof” is still used in many law practices. This is different if we compare it to what has existed in the United States. America has been fully using strict liability principles within its consumer protection law system. As a matter of fact, the United States has used strict liability with the extension of intentional torts, which give more favor to consumers.


Introduction
The advancement of industry and technology has led to a contrast between traditional and modern societies ways of life (Zaid, n.d.).In traditional society, commodities are produced through a much simpler process.The relationship between consumers and producers is much simpler when consumers can directly interact with the producers.Meanwhile, in modern society, free trade emerges as a result of globalization, especially in the fields of economy and business (Artha Windari, 2015).
With the progress and development of today's business world has made actors Businesses make very strong and intense competition to fight over consumers (Riadi et al., 2021).There is a much more complex relationship between consumers and producers since the interactions between consumers and producers are often conducted indirectly.Often the distance between the two is states apart.This phenomenon shows that consumer protection law is deeply connected with trade globalization and the economic activity of a state.Because of this, consumer protection has to be given more attention, mostly because foreign investment is a central element of Indonesia's economic development as a part of the global economy.Without better attention to consumer protection, international trade competition can implicate badly to the consumers (Syawali & Sri Neni, 2000).
Article 33 and 34 of the 1945 Constitution are the juridical foundation of Indonesia's economic development.It considers economic trade development as a prioritized sector of national development, with the goal of hastening an economic recovery that is based on a democratic economy.In the most common form, this democratic economy comes in promoting the interests of consumers (Yusuf, 2003), which requires the formulation of laws that can be widely implemented and are capable of integrative and comprehensive consumer protection.
Law No. 8 of 1999 on Consumer Protection (hereinafter referred to as the UUPK) is a legal foundation intended to make the consumers more independent and more aware of their own rights and obligations.Implementation of Law No. 8 of 1999 protects consumers who is a wise decision.The theory of national development forms the basis for this government-society partnership (Nurjanah & Paulus, 2022).Such a shift requires a legal instrument with the intention to guarantee consumers' rights specifically rights to safety, health, and compensation (Reich, 2003) since quality control and trade regulations are inadequate in protecting consumers from injury, property damage, or pure economic loss.This legal instrument is the product liability law, which can guarantee that the consumers of a defective product receive compensation for their loss.
As a term, product liability is still considerably new; currently, it is universally applied on liability of company and sellers indirectly involved with a product which inflicts damages or injuries to consumers, properties owned by the consumers, or any other affected third parties (Davis, 1987).In Black's Law Dictionary, there are three formulations of product liability: (1) A manufacturer's or seller's tort liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product.Products Liability can be based on a theory of negligence, "strict liability," or breach of warranty.
(2) The legal theory by which liability is imposed on the manufacturer or seller of a defective product.(3) "Refers to the legal liability of manufactures and sellers to compensate buyers, users and even bystanders, for damages or injuries suffered because of defects in goods purchased."(Black, 1983) Any claims for compensation should be based on three legal theories: negligence, breach of warranty, and strict product liability.Of the three, strict product liability is the most recent theory.
The change in the system of liability from the concept of negligence to the concept of risk, according to Rudiger Lummert, is caused by the developing industrialization that has yielded bigger risks and more complex cause-effect links (Hardja Soemantri, 2002).The main purpose of product liability law that implements strict product liability is to ensure that the tort liability of a defective product is weighed upon parties with the liability to compensate for the loss.The implementation of this principle has affected the number of filed claims as well as the amount of compensation ruled by the court in several states such as the US which implements strict liability product (Polinsky & Shavell, 2014).
Traditional theories on consumer protection, such as negligence, breach, or express, and implied warranty are still applicable, though they are more difficult for the consumers to employ compared to strict liability (Moller & Indig, 1996a).As an example, a negligence-based lawsuit requires the victims (consumers) to prove that the sellers or producers fail at making the best efforts at producing and marketing their products.This is really difficult for the consumers to do.Similarly, for consumers utilizing the breach of warranty theory, they are tasked with referring to a part in the contract that specifies a certain compensatory mechanism.In contrast, strict product liability reduces or may even remove such burden of proof from the consumers.
In the field of economics and business that is affected by the impact of globalization resulting from the emergence of free trade, the opportunity to participate in free trade and its potential is possessed by every person in every country as a consequence of free trade.Efforts to protect these industries essentially arise due to the rapid growth of industries in various regions (Widnyana et al., 2021).Laissez-faire is one of the efforts to protect this industry, which is a doctrine of the free market."Let it be" is the meaning of the French term known as Laissez-faire.Not interfering in people's lives is the government's doctrine regarding this term.Therefore, individuals can do what they want as long as it does not violate the law and respects other members of society (Johnson, 2003).Unfortunately, such a free condition also has an impact on consumers.The principle of "with the least possible cost to gain the greatest possible profit" apparently leads entrepreneurs to neglect the quality of the products being marketed and only prioritize being profit-oriented.This results in many products consumed by consumers turning out to be harmful.Therefore, there is a strong need for the imposition of professional duty on producers (Imron, 2003).This obligation is an obligation that arises as a demand for public interest, especially for consumers protection.Therefore, the law that applies to product liability will enforce the principle of strict liability.
However, in some cases in practice, in court, considering the difficulty of proving the losses or accidents that befall consumers due to defective products, consumers must provide sufficient evidence to support their claims.This proof is called the reversed burden of proof concept, which in consumer protection cases is similar to the reversed burden of proof concept in criminal law, which essentially means the party that has to prove is the party that caused the loss, namely the defendant (Kusmayanti & Yuanitasari, 2020).
Therefore, the author intends to analyze the difference between theory and practice in consumer cases related to strict liability, with a comparative study of the regulations in Indonesia and the United States.In Indonesian legal system, product liability has actually been regulated by the Indonesian Civil Code.There are Articles 1322Articles , 1473Articles , 1474Articles , 1491Articles , 1504 to 1511.However, with the note that the scope of the material is not as extensive as the provisions regulated in the Consumer Protection Law (Nur & Prabowo, 2011).However, by using the Indonesian Civil Code, if a consumer suffers from loss and wishes to file a claim of compensation to a business actor (trader, seller, distributor, or agent), it will be difficult for the consumers to receive compensation since the consumer has the burden of proving the negligence of the business actor.Otherwise, the consumers' claim will be rejected.However, if a state implements strict liability on product liability in its consumer protection, consumers suffering from loss because of a defective product should be able to demand contribution without having to prove the negligence of the business actors.

The implementation of liability principle in Indonesia's consumer protection law
Economic development in general has led to the availability of many goods or services to consume.Globalization and free trade have also allowed more room for the transaction of goods across national borders.Such a condition calls for consumer empowerment through the formulation of a widely implementable law capable of integrative and comprehensive protection of consumer's interest.
In regard to consumer protection, legal protection for consumers is achieved through respecting consumers' rights; realization of business actors' obligations; regulations for business owners that prohibit violations, misconducts, and the inclusion of certain standard clauses; business owners' liability to compensation; and dispute resolution for consumer protection.
The United Nations Resolution No. 39/248 of 1985 on Consumer Protection (The Guidelines for Consumer Protection) also formulates several interests of consumers that need protection: (1) Protection from hazards/dangers to health and safety.
(2) Promotion and protection of socio-economic interests of the consumers.
(3) Availability of information to assist consumers in making the best choice based on personal interest.
(6) Freedom to form a consumer body or other organizations relevant for voicing opinion in the process of making the best decision based on personal interest.
The following principles of consumers' position would better demonstrate their vulnerability and weakness.Principles of consumers' position in legal relation with business actors are derived from famous doctrines in the history of consumer protection, which are as follows (Shidarta, 2000): (1) Let the Buyer Beware; (2) The Due Care Theory; (3) The Privity of Contract; (4) Non-Condition Contract.
Legal protection is inseparable from the liability of business owners to fulfill the demands of consumers.Generally, the liability principles in law are (Widjaja & Yani, 2003) (a) Liability based on fault (b) According to this principle, business owners that conduct fault in conducting business are liable to compensate for any damages or loss caused by the fault.
(c) Presumption of Liability (d) According to this principle, business owners are always liable for every loss caused by their business activities.
(e) Presumption of Non-Liability (f) In contrast with the second principle, presumption of non-liability is only applicable to a very limited context of consumers' transaction; this limitation is often justified by common sense (g) Strict Liability (h) This principle is often considered to be identical with absolute liability principle.Absolute liability is a principle of liability without fault and without exception.
(i) Limitation of Liability (j) This principle is employed by business actors through the inclusion of exonerated standard clauses in the contracts they formulate.
The concept of liability is an essential element of the legal obligation concept.Legal obligation is derived from a transcendent norm which serves as the foundation of every regulation.The norm assigns an obligation to obey the legal regulations and to be liable in following those regulations (Huijbers, 1995)

The regulation of liability principle in the consumer protection law of the United States of America
Consumer protection law began with the consumer protection movement in the US during the beginning of the 19 th century.The US government then started to acknowledge the direness of consumer protection during the reign of Kennedy, who, in his presidential speech before the congress, formulated four basic rights of consumers (Troelstrup, 1974): (1) Right to security and safety (2) Right to information (3) Right to select and (4) Right to be heard President Lyndon B. Johnson then further reinforced the four consumer rights by adding product warranty and product liability principles, which are implemented in the government policy regarding lending charges and packaging practices.The consumer protection law continued to develop onto the presidential reign of Richard M. Nixon, who introduced the concept of consumer protection covering these following rights (Siahaan, 2005): (1) The right to make intelligent choice among products and services (2) The right to accurate information (3) The right to expect that sellers have considered the health and safety of the buyer (4) The right to make intelligent choice among products and services (5) The right to register his dissatisfaction and have his complaint heard and weighed.
There is no uniformity in the consumer protection law of the US, since each state is given the authority to regulate its own law.In the US, consumer protection law can be a part of state law that is formulated based on the Uniform Commercial Code; or it can be part of the federal law which includes the regulations formulated by the Federal Trade Commission; or part of the common law (which covers torts and contract), in which the US Constitution does not specifically regulate consumer rights or consumer protection (Delisle & Trujillo, 2010).
Generally, the US law defines consumer as "buyer" of goods/services who use it privately or for family or household needs, but this definition is expanded with the introduction of warranty law to cover remote purchasers and remote consumers-parties indirectly involved with the purchase from business actors and who are not bound by the privity of contract.According to the UCC, there are three categories of consumers granted with consumer protection, apart from the regular "buyers" (White & Summer, 2008): (a) Family member, occupants, and guests in the house of the buyer.
(b) Natural person who uses, consumes, or is affected by the consumption of the product; or (c) Every individual who suffers from loss due to the breach of warranty by the sellers.
From the above explanation, it is clear that the purpose of implementing consumer protection law in the US is to achieve a fair and equal social welfare, in which the general public are recognized as consumers.The consumer protection law in the US develops based on respecting human rights and the efforts to avoid unhealthy trading competition, thus ensuring economic stability.
The term of product liability was only introduced around 60 years ago in the US' field of insurance, to respond to the booming food productions.Both manufacturers and distributors insured their goods for risks of defect that could inflict loss to consumers.
In general, a product is defined as tangible goods, either movable or immovable.However, in the case of product liability, products can also come in intangible forms, like electricity, natural products, writings, or fixtures of real estate.Furthermore, the definition of product also recognizes not only goods as a whole but also its component parts.
According to Hursh, product liability is "the liability of manufacturer, processor or non-manufacturing seller for injury to the person or property of a buyer third party, caused by product which has been sold."Perkins Coie also states that product liability is "the liability of the manufacturer or others in the chain of distribution of a product to a person injured by the use of product."Meanwhile, Article 3 of the Convention on the Law Applicable to Products Liability (The Hague Convention) states that: "This convention shall apply to the liability of the following persons: (1) Manufacturers of a finished product or of a component part (2) Producers of a natural product (3) Suppliers of a product (4) Other persons, including repairers, and warehousemen, in the commercial chain of preparation or distribution of a product It shall also apply to the liability of the agents or employees of the persons specified above." Therefore, product liability means a legal liability of a person/body that produces and manufactures a product, legal liability of a person/body that takes part in the processing and assembling of a product, or legal liability of a person/body that sells or distributes the product.
Even by reviewing the above conventions of product liability, the implementation is expanded to cover any person/body involved in the commercial processes of production and circulation; this includes businessmen, repair shops, and even storages.It even applies to the agents and workers of the aforementioned commercial processes.This liability is concerned with defective product that causes damages, material/property loss, or injuries to consumers.

Methods
This research is a Normative Legal Research and Analytical Descriptive nature.This research uses a normative juridical research type with the rationale that it will examine the form of strict liability in consumer protection law in Indonesia.The approach used in problem-solving is through a comparative approach and a statutory approach, without ignoring conceptual analysis (legal analytical and conceptual approach).This study will depict on how opportunities will exist if the substance of Indonesian consumer protection law system changed from fault-based liability into strict liability on its application for the product liability.Secondly, the study will also go further on the comparison between the application of product liability within practical terms as well as the application of the consumer protection law system between Indonesia and the United States.

The comparison of implementation of strict liability principle on product liability between the consumer protection systems in Indonesia and in the United States
The history of product liability in the common law system and the civil law system apparently shows the differences in the origin of strict liability.Currently, strict liability is better known as no-fault liability/liability based on no fault/liability without fault, or liability based on risk, as known in the common law system.In the common law system, the strict liability regime is a transformation (change in form) of contractual liability, which indeed does not require any element of fault.While in the civil law system, strict liability is better known as a derivation (derivative) of tortious liability, where the element of fault is one of the requirements to claim liability.Thus, the existence of an element of fault is still included, but a transfer of the burden of proof for the element of fault is made from the plaintiff to the defendant (shifting the burden of proof) (Gunawan, 2018).
The general consumer protection principle is internationally regulated by the UN in its United Nations Guidelines for Consumer Protection of 2003-which apply for goods and services.Its contents have been agreed upon to be implemented in the legal systems of all the UN's state members, including Indonesia, which cover: (1) Physical safety In Indonesia, the implementation of the above principles is partly contained in the UUPK, specifically in Article 4 on consumer rights, and Article 7 on the obligations of business actors.Some principles yet to be accommodated by the UUPK are to be included in the bill for the UUPK Amendment; these cover: (a) The availability of a more conceptual elaboration and more specific regulations for services, since the UUPK refers to it in unity with goods as "goods and services." (b) The inclusion of strict liability principle to replace the previously implemented presumed liability.
(c) The amendment of some regulations on standard clauses.
(d) The availability of more specific regulations on the Consumer Dispute Resolution Body (BPSK), along with an effective implementation that can promote the effectiveness of the body.
(e) The reform in the structural authority of the National Consumer Protection Body (BPKN), a currently independent body, later intended to be under the government's supervision.
Indonesia's Consumer Protection Law has specifically regulated the liability of business actors.Article 19 of UUPK regulates liability as: The liability to compensate for damage and loss inflicted to consumers due to the consumption of goods/services produced or sold.The compensation comes in form of a refund, or a replacement of new goods/services of the same type or exchange value, or healthcare and/or assistance as instructed by the law The liability of business owners can be categorized as: (1) Liability to compensate for damage; (2) Liability to compensate for pollution; (3) Liability to compensate for consumers' loss.
This means that the liability of business owners covers every form of loss suffered by the consumers.The proper response to the liability is to provide compensation as regulated in Article 19 Chapter 2 of the UUPK."So, UUPK is not just a legislative policy for consumer protection efforts, but also for enforcing business ethics among business practitioners" (Deviana Yuanitasari, 2017: hlm 425).(Yuanitasari, 2017) A consumer can make a claim for compensation based on three theories of liability; which are liability based on negligence, liability based on breach of warranty, and strict product liability.Of the three, strict liability is the most recent theory.The Law on product liability is derived from torts, but is imbued with strict liability, regardless of whether or not there is an element of intention.In such condition, it is clear how the caveat emptor (consumers' liability) principle is dismissed in favor of the caveat venditor (producers' liability) principle.
According to the theory of strict liability, product defect is considered to be caused by the negligence of business actors.This implies that the element of negligence no longer requires proving before the court (Oughton & Lowry, 1997).Articles 22 and 28 of the UUPK explicitly mention about the implementation of reversed burden of proof, where business actors as defendants are assigned the burden of proof to prove their innocence before the court.This also implies that the consumer protection system in Indonesia still necessitates the proving of negligence in the court.Because of that, it can be said that the current UUPK applies the strict liability principle, since it basically does not require the proving of negligence.According to the development of legal theory, it can be said that the UUPK still adopts the principle of liability based on fault with reversed burden of proof.
UUPK has regulated product liability, but in its implementation, it is less effective in protecting consumers from losses caused by a product.The author gives an example of the responsibility of business actors in e-commerce transactions, where shopping through a marketplace platform does not always bring comfort to consumers.The products sold by business actors, often referred to as store owners, are not always of good quality.Transactions through online platforms, their existence is significant and can lead to misunderstandings among users of the platform.These misunderstandings can be experienced by consumers and can also be intentionally done by business actors with the aim of gaining profit from the transaction (Wikata & Layang, 2019).One example is the case experienced by Adi Diana Putra, as a business actor in electronic transactions, where the goods sent by his store had hidden defects.Although it is mandatory for the Elixir Store to compensate for the losses, the store owner also has the right to hold the distributor accountable because I Made Adi is considered an intermediary trader.According to the Civil Code, the seller is responsible for the goods sold to another seller, and this responsibility is based on compensating the consumer for any losses if the other seller fails to make changes to the products.Therefore, this responsibility will exist if the changes are made by another seller.In other words, the seller can be exempted from responsibility if another seller modifies the product.(Wibawa & Purwanto, 2021) So, in practice, in certain cases, the principle of strict liability is not implemented by the seller because they do not accept returns of the goods already shipped, resulting in the consumer bearing the responsibility and at the same time becoming the consumer's risk.In Black's Law Dictionary, product liability is defined as "a manufacturer's or seller's tort liability for damage or injuries suffered by a buyer, user, or bystander as a result of defective product." Product liability can also be understood as: The liability of any or all manufacturers of any product for damage caused by the product.Product containing defect that cause harm to consumer of the product, are the subjects of product liability suit Some other literature considers the definitions of strict liability and product liability to be similar.Some examples are the Restatement of Torts and the EC Directive on Product Liability.Both employ the term strict product liability, though it is clear that there is still a slight difference between the two terms.While it is clear that they both belong to the area of tort liability, product liability is limited as liability on "goods," while strict liability covers a broader scope of products as both goods and services.Thus, it can be said that product liability is a part of strict liability.
As mentioned above, superficial observation makes it clear that the provisions of product liability have actually been regulated by the Indonesian Civil Code.However, in using the Indonesian Civil Code, consumers suffering from loss who want to sue the producers (including seller, grocery, distributor, and agent) will face obstacles that make it difficult for them to receive compensation.
Among the obstacles, the most notable one is that the consumer will be assigned the burden of proof to prove the fault/negligence of the producers.Otherwise, the claim of the consumers will be rejected.Because of the steep difficulty in such burden of proof, by the 1960s, the US implemented the strict liability principle which has continued to be relevant for around 30 years now-with its current development adopting the intentional torts principle to better benefit the consumers.With the implementation of strict liability principle, every consumer who suffers from loss due to a defective product can file a claim for compensation without having to prove the negligence of the producers.
Several famous cases related to strict liability in America that do not require proof.First is the Henningsen case, where 18 states apply the principle of absolute liability (strict liability), without negligence and privity of contract to the manufacturer of several products such as automobiles, combination power tools, aluminum rocking chairs, and asbestos products (Samsul, 2004).Second, in the case of Cardozo (1996), a car buyer had an accident due to the tire of the car bursting.Although the tire itself was not produced by Buick, the car manufacturer was still held responsible for the accident because they placed the tire on the car and sold it to the consumer.In this case, the principle of strict liability was applied, so that the consumer did not have to prove Buick's fault in producing the tire.
The reasons why the strict liability principle is implementable in laws on product liability are: (a) Among consumers/victims and producers, the party who produces and circulates defective products in the market should bear the greater risks in business.
(b) By circulating products in the market, the producers thus guarantee that those products are safe for consumption.Thus, if the products are found to be defective, the producers should be liable to compensate for any loss caused by the products.
(c) Actually, without even implementing the strict liability principle, negligent producers can be reached via a streak of lawsuits-of consumer to retailer, retailer to grocery, grocery to distributor, distributor to agent, and agent to producer.The implementation of strict liability serves an additional purpose of shortening such a long-winding legal process.
Whatever the reason, business actors are liable if their products are discovered to be hazardous or defective.After all, accurate and complete information is among the rights of the consumers, and the failure of the producers to fulfill this right means that they should be held accountable for it.
The purposes of the implementation of strict liability vary among the initial decisions on its formation, but primarily it is to guarantee that consumers will receive compensations from the business owners for producing defective or hazardous products; and that the compensation is the liability of the business actors instead of the consumers for being powerless and vulnerable without protection (Davis, 1987, p. 15).
As mentioned before, the US' consumer protection law is regulated by the Federal United Commercial Code (UCC) and the Magnuson Moss Warranty Act.However, legal liability belongs in the scope of torts regulated by the Restatement (Third) of Torts: Product Liability, formulated by the American Law Institute.
Another interesting aspect in the development of tort law in the US is that despite the departure of most universal legal system from the obsolete element of negligence in the case of product defect, the Restatement (Third) of Torts returns the once abandoned concept of negligence into the tort law (Ausness, 2006).The legal development of the US acknowledged that the concept of negligence cannot be fully abandoned, and saw its return in the Restatement (Third) of Torts as: "A product defective in design when foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warning by the seller or other distributor."The traditional theory of product defect is then slowly abandoned in favor of a theory that better emphasizes on legal liability which does not require any proof of defect like misrepresentation, civil conspiracy, malfunction doctrine, and negligent marketing.
In the practice of misrepresentation, legal liability arises when a false statement is made by the business actors to the consumers.Because of that, this theory returns the element of negligence to the liability system while putting aside the element of product defect.
In malfunction theory, legal liability arises when there is a malfunction of a product regardless of whether or not there is actually a defect in the product.In this case, the consumers only need to prove the malfunction of the product without having to prove its defect.In quite similar fashion, negligent marketing emphasizes on the marketing practices, and not the element of product defect.
These four new theories in the US' tort law present a new shift of paradigm in its new system of intentional torts (Simons, 2006).Intent is defined as "an intent to produce a consequence means either the purpose to produce that consequence or the knowledge that the consequence is substantially certain to result."The intentional torts return the subjective element in legal liability, no longer completely relying on objective elements such as product defect.

Conclusion
(1) Articles 22 and 28 of the UUPK explicitly mention about the implementation of reversed burden of proof, where business actors as defendants should prove their innocence before the court.This stipulation implies that the consumer protection system in Indonesia still necessitates the proving of the element of negligence in the court.The UUPK until recently has not yet implemented the strict liability principle since it would mean that the element of negligence no longer needs proving.Based on the development of legal theory, the UUPK can be said to still adopt the liability based on fault principle with reversed burden of proof.
(2) The US implements strict liability with an expansion to intentional torts which is really beneficial for consumers.The intentional torts return the subjective elements into the legal system, which means that it no longer completely relies on objective elements such as product defect.

Suggestions
(1) With the implementation of strict liability, every consumer who suffers from loss due to a defective or hazardous product may file a claim for compensation without having to prove the negligence of the business actors.
(2) The inclusion of the strict liability principle in the Bill of the UUPK Amendment in order to supplant liability based on the fault principle while still preserving the reversed burden of proof.

( 2 )
Promotion and protection of consumers' economic interests (3) Standards for the safety and quality of consumer goods and services (4) Measures enabling consumers to obtain redress (5) Education and information programs (6) Promotion of sustainable consumption (7) Measures relating to specific areas